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