Rachel A. Elmore, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 26, 2009
0120070188 (E.E.O.C. Mar. 26, 2009)

0120070188

03-26-2009

Rachel A. Elmore, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Rachel A. Elmore,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120070188

Agency No. HS 05-1025

DECISION

Complainant appeals to the Commission from the agency's decision dated

September 5, 2006, finding no discrimination. In her complaint, dated

May 21, 2004, complainant alleged discrimination based on sex (female)

when since November 2002, she was not paid at the rate of a Transportation

Security Screener Supervisor, SV-0019-G, although she was detailed to

a supervisor's position and performed higher level functions at the Ted

Stevens Anchorage International Airport during that time.

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 action. Specifically, the agency indicated that complainant

was hired as a Screener and was paid as one. Although complainant

was appointed as an acting supervisor, employees on details to higher

grade positions did not receive the higher grade pay. Complainant's

supervisor stated that he wanted to place complainant in a permanent

supervisory position but the contractor filled the supervisory positions

and there were simply no permanent supervisory positions for the agency

to fill due to budget constraints. The agency indicated that despite

complainant's contentions, during the relevant time period at issue, 8 -

10 other employees, male and female, who were qualified as supervisors

and were intended to become supervisors as positions became available,

were also assigned to acting supervisory positions. The agency stated

that none of the acting supervisors were paid at the same rate as the

permanent supervisors.

Upon review, we find that the agency articulated legitimate,

nondiscriminatory reasons for the alleged action. We further find that

complainant failed to show that the agency's proffered reasons were

pretextual.

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

3/26/09

__________________

Date

2

0120070188

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013