0120090351
02-26-2009
Mary Vasek, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Mary Vasek,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090351
Agency No. 200J-0578-2008100625
DECISION
Complainant appeals to the Commission from the agency's decision
dated September 24, 2008, finding no discrimination. In her complaint,
dated December 26, 2007, complainant alleged discrimination based on age
(over 40) when she was denied promotion to GS-10 whereas other employees
received a promotion to GS-10.
After completion of the investigation of the complaint, complainant did
not request a hearing. The agency then issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination,
finds that the agency has articulated legitimate, nondiscriminatory
reasons for the denial of a promotion. At the time of the incident,
complainant was a MRI/MRA GS-649-09, which was also referred to as a
Magnetic Imaging Technician (MIT) or Magnetic Resonance Imaging (MRI)
Technician. Complainant's supervisor stated that complainant as an MRI
Technician previously elected to perform only the MRI duties when she was
offered the opportunity to change positions and perform three radiology
functions including MRI, CT and X-ray duties. The agency stated that
those employees who received a promotion to GS-10 were DRI/CT/MR that
involved three specialized job functions; whereas, complainant was an
MRI that involved only one specialized job function. Specifically, the
supervisor indicated that another MRI who performed all three functions
was previously a GS-9 like complainant but recently received a promotion
to a GS-10 because of his three functions.
Upon review, we find that complainant failed to rebut the agency's
legitimate, nondiscriminatory reasons for not promoting her to GS-10.
We also find that complainant failed to show that she was treated less
favorably than a similarly situated employee under similar circumstances.
After a review of the record, we find that complainant failed to show
that the nonpromotion was motivated by any discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
2/26/09
__________________
Date
2
0120090351
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013