0120071090
05-08-2009
Pamela C. Parra, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Pamela C. Parra,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071090
Agency No. 200I-0673-2005013970
DECISION
Complainant appeals to the Commission from the agency's decision dated
December 6, 2006, finding no discrimination. In her complaint, dated
October 30, 2005, complainant alleged discrimination based on race (Black)
and sex (female) when on October 26, 2006, she received notification that
the vacant position of Physical Therapy Assistant, GS-0636-05/5, Vacancy
Announcement # MPA B05-14 was not going to be filled by management, and
when she was informed on August 28, 2005, after she was interviewed and
found qualified, that the vacant position of Physical Therapy Assistant,
GS-0636-05/5, previously announced under Vacancy Announcement # MPA B05-14
on May 16, 2005, was re-announced on August 22, 2005, and September 20,
2005, because there were not enough qualified applicants.
After completion of the investigation of the complaint, complainant
requested a hearing but later withdrew the request. 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 alleged nonselection. Management indicated that the
selecting/recommending official in this matter, subsequently, died
of cancer shortly after retiring in 2005. Management stated that the
position at issue was announced three times, i.e., on May 16, 2005, August
22, 2005, and September 20, 2005. Due to the extended illness of the
selecting official, management stated, the position was not filled and
management subsequently decided to recruit for a professional Physical
Therapist GS-11 position. Management noted that there was one offer made
regarding the position in question; however the individual selected by
the selecting official declined the position due to a recent back injury
and the position was not filled. Management indicated that there was
no ranking order of the applicants. Management added that the selecting
official, after reviewing complainant's applications for the position
at issue, had concerns regarding one of complainant's physical therapy
assistant licenses being put on a probationary status. On appeal,
complainant does not provide any persuasive evidence that any agency
actions were motivated by 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
5/8/09
__________________
Date
2
0120071090
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013