01A32480_r
12-29-2003
Tamilin Ferrier, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Tamilin Ferrier v. Department of the Interior
01A32480
December 29, 2003
.
Tamilin Ferrier,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A32480
Agency No. FNP-2003-004
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 14, 2003, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The agency
defined complainant's complaint as alleging that she was subjected to
discrimination on the basis of sex (female) when:
Complainant was not selected for the position of Supervisory Park
Ranger (Chief Ranger), GS-0025-14, which was advertised under vacancy
announcement number GRCA-2001-67, and re-advertised under vacancy
announcement GRCA-2001-82 at the GS 14 level, which was located at the
Grand Canyon National Park.
Complainant was not selected for the position of Supervisory Park Ranger,
GS-0025-13/14, which was advertised under vacancy announcement number
GRCA-2002-063, and located at the Grand Canyon National Park.
The agency dismissed issue (1) pursuant to the regulation set forth at 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The agency
claimed that complainant became aware of her non-selection for vacancy
announcement numbers GRCA-2001-67 and GRCA-2001-82 on November 15, 2001.
The agency stated that complainant did not contact the EEO Office until
mid-July 2002, which was beyond the applicable limitations period.
With regard to issue (2), the agency dismissed this issue pursuant to
the regulation set forth at 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim. The agency stated that the position of Supervisory Park
Ranger, GS-0025-13/14, was advertised under vacancy announcement number
GRCA-2002-63 on March 2, 2002. The agency stated that the vacancy
announcement did not indicate that an applicant who had previously
applied for this position need not re-apply. The agency acknowledged
that a selection for vacancy announcement number GRCA-2002-63 was made.
However, the agency claimed that since complainant failed to apply for
this position, she could not have been considered for the position.
Further, the agency claimed that vacancy announcement GRCA-2002-63 is
a separate and distinct action which required complainant to respond
because it was advertised at a different grade level.
On appeal, complainant stated that she applied for the position of
Chief Ranger, Vacancy Announcement No. GRCA-2001-82 in August 2001.
She notes that she had previously applied for this position under
Vacancy Announcement No. GRCA-2001-67. Complainant explained that in a
November 15, 2001 letter, the agency informed her that no selection had
been made for the Chief Ranger position. She claimed that the letter
advised her that if the agency decided to re-advertise the position,
it would notify her so that she could reapply. She stated that she
received no further official correspondence from the agency regarding the
Chief Ranger position. Complainant explained that on May 1, 2002, she
learned from an agency employee that the position had been re-announced.
She stated that on June 2, 2002, she learned that a White male had been
selected for the position. She stated that at this time she first
suspected discrimination and on July 12, 2002, attempted to initiate
EEO Counselor contact. Complainant noted that she is not an agency
employee and was wholly reliant upon the agency to notify her if the
position was re-advertised. Complainant stated that she had no reason
to suspect discrimination on November 15, 2001, as no selection had been
made at that time.
The record contains a copy of the November 15, 2001 letter notifying
complainant that the agency is delaying filling the Chief Ranger position.
The letter notified complainant that after the first of the calendar
year, another person will fill the position on a temporary detail.
Complainant was notified that consideration will be given on whether
to go forward on filling the position on a permanent basis. The letter
stated that if the position is readvertised she is invited to reapply.
The record contains a copy of the Vacancy Announcement for GRCA 2001-82
which advertised the Supervisory Park Ranger position at the GS 14 level.
The announcement contained a special note that �THIS IS A READVERTISEMENT
OF ANNOUNCEMENT GRCA 2001-67, APPLICANTS WHO PREVIOUSLY APPLIED DO NOT
NEED TO REAPPLY FOR CONSIDERATION.�
The record contains a copy of the Vacancy Announcement for GRCA 2002-63
which advertised the Supervisory Park Ranger position at the GS 13/14
level.
Upon review, we find that the agency properly dismissed complainant's
complaint. With regard to issue (1), although the agency dismissed this
issue for untimeliness we find that this issue is more appropriately
dismissed for failure to state a claim. The record reveals that in August
2001 complainant applied for the position of GS-14 Supervisory Park
Ranger, vacancy announcement GRCA-2001-82, originally advertised under
vacancy announcement GRCA-2001-67, and was informed in a November 15,
2001 letter, that at the time no selection was made on this position.
On appeal, complainant does not contest the agency's arguments that no
selection was made for the position advertised under announcement numbers
GRCA-2001-67 and GRCA-2001-82. Furthermore, complainant does not argue
that the agency decided not to make a selection because she applied for
the position. Because no selection was made for the position, we find
that complainant has failed to show that she was aggrieved in claim (1).
Similarly, we find that issue (2) was properly dismissed for failure
to state a claim. The record reveals that the agency re-announced
the Supervisory Park Ranger position on March 1, 2002, under vacancy
announcement GRCA-2002-063, as a GS-13/14. The record reveals that
complainant did not apply for this new position. The record contains
a copy of the Vacancy Announcement for GRCA 2002-63 which does not
indicate that applicants who previously applied for GRCA 2001-67 and/or
GRCA 2001-82 do not need to reapply for consideration. The Commission
has held that claims of non-selection fail to state a claim where the
complainant failed to apply for the position. A complainant is only
aggrieved in such claims where a complainant alleges that the agency
discouraged him from applying; or that the application process was
secretive. See Ozinga v. Department of Veterans Affairs, EEOC Request
No. 05910416 (May 31, 1991). Complainant does not claim that the agency
discriminatorily discouraged complainant from applying for GRCA-2002-63,
or that it discriminatorily kept her unaware of the position announced
under GRCA-2002-63. Further, we note that despite complainant's claim
that the agency failed to notify her of this new announcement, she
produces no evidence that the agency was under an obligation to notify
her of the position announcement.
Accordingly, the agency's decision to dismiss complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 29, 2003
__________________
Date