0520120427
10-18-2012
Pamela J. Duray, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Pamela J. Duray,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520120427
Appeal No. 0120110578
Hearing No. 443-2009-00005X
Agency No. HS-08-CBP-004467
DENIAL
Complainant timely requested reconsideration of the decision in Pamela J. Duray v. Department of Homeland Security, EEOC Appeal No. 0120110578 (May 1, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability, and age (51) when: (1) on January 24, 2008, she was not selected for a GS-201-5/7 Human Resources Specialist position under Vacancy Announcement 160726; (2) on January 24, 2008, she was not selected for a GS-201-9/12 Human Resources Specialist position under Vacancy Announcement 160612; (3) on January 24, 2008, she was not selected for a GS-201-9/12 Human Resources Specialist position under Vacancy Announcement 160631; and (4) on February 28, 2008, she learned that selections had been made for a Human Resources Specialist position under Vacancy Announcement 160684, and she was not provided an opportunity to apply for this position.
The appellate decision affirmed the Agency's final order, which implemented an EEOC Administrative Judge's (AJ) finding of no discrimination. The AJ issued a decision without a hearing on claim 4 and a decision after a hearing on claims 1-3.
Regarding claim 4, the appellate decision determined that the AJ's decision without a hearing was appropriate because there were no genuine issues of material fact in dispute and a reasonable fact finder could not find in Complainant's favor. Specifically, the appellate decision found that the record supported the following findings by the AJ: (a) because it was a Federal Career Intern Program (FCIP) position, it was standard procedure to post the position only on college websites; (b) the Agency was not required to post FCIP positions on USAJOBS; (c) there was no evidence that the Agency purposefully tried to hide the position from Complainant; and (d) Complainant was not considered for the position because she did not apply.
Regarding claims 1-3, the appellate decision determined that substantial evidence in the record supported the AJ's finding of no discrimination. Specifically, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's non-selections; namely, Complainant had performance issues in her current position as a GS-7 Human Resources Specialist. Moreover, the appellate decision found that Complainant did not establish that the Agency's reasons were a pretext for sex, disability, or age discrimination. In so finding, the appellate decision cited the following: (a) there was no evidence that the Agency purposefully did not select candidates under Vacancy Announcements 160726 and 160612 in order to avoid selecting Complainant; (b) Complainant did not establish that her qualifications were observably superior to those of the selectees; (c) Complainant's performance reviews from 2004 to 2008 were not specific enough to indicate what her performance was, other than it was not bad enough to be considered "unacceptable;" (d) while Complainant received awards in 2005 and 2007, management had verbal conversations with her about performance issues and she was transferred to another unit due to performance issues; and (e) Complainant made a mistake on a part-time vacancy announcement which resulted in 50 applicants being incorrectly deemed ineligible, and subsequently the Agency had to give those 50 applicants preference on future vacancy positions.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant reiterated many of the arguments she previously raised on appeal. Among other things, Complainant asserted that she did not have performance problems, that her qualifications were plainly superior to those of the selectees, that the Agency misconstrued facts and deliberately failed to produce evidence in order to hide its discriminatory motives, and that the Agency failed to provide sufficiently specific or truthful reasons for her non-selections. In response, the Agency argued that it could not identify any contention made by Complainant that she did not already make in her original appellate brief and that she failed to meet the criteria for reconsideration.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. We note that Complainant raised similar arguments on appeal and that the appellate decision addressed those arguments. We decline to revisit those arguments now and remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VII.A. (Nov. 9, 1999). Here, Complainant has failed to show that the previous decision clearly erred when it determined that the AJ appropriately issued a decision without a hearing in claim 4 or when it determined that there was substantial evidence in the record to support the AJ's finding of no discrimination in claims 1-3.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120110578 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
__10/18/12________________
Date
2
0520120427
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120427