0520120560
12-12-2012
Louise Ecoff, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Louise Ecoff,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Request No. 0520120560
Appeal No. 0120121382
Agency No. BLM-10-0483
DENIAL
Complainant timely requested reconsideration of the decision in Louise Ecoff v. Department of the Interior, EEOC Appeal No. 0120121382 (June 21, 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).
Complainant worked as a Program Analyst at the Agency's Office of Support Services, Office of the Director, National Operations Center (NOC) in Lakewood, Colorado. Complainant alleged that the Agency discriminated against her on the bases of sex (female), and age (59) when; (1) on July 8, 2010, Complainant was notified that she was not selected for the position of Deputy Business Operations Manager, GS-14, Vacancy Announcement No. NOC Merit-2010-0077, Division of Business Services, at the NOC; and (2) On July 9, 2010, Complainant was notified that she was not selected for the position of Project Manager, GS-14, Vacancy Announcement No. NOC-Merit-2010-0083, Office of Program Management, at the NOC. The Agency issued a FAD which found Complainant failed to demonstrate that she was subjected to discrimination. Complainant appealed the Agency's decision to the Commission.
The Commission found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions, namely that for issue no. 1, Selectee 1 was chosen for the position based on his prior supervisory experience and diverse experience at multiple levels within the Agency. Selectee 1 had also graduated from the Agency's leadership Academy, while it was believed that Complainant had not. It was also noted that Selectee 1 had interviewed much better than Complainant. With regard to issue no. 2, Selectee 2, was chosen because he demonstrated an understanding of the principles crucial to carrying out the central functions of the position and because he had a better interview than Complainant. Two different Selecting Officials were used for the positions and they both noted that Complainant had a negative attitude during the interview and one Selecting Official noted that Complainant had mentioned during the interview that she wanted the position because she wanted more money.
To show pretext, Complainant asserted that her qualifications were superior to the selectees and maintained that if proper selection standards had been used, i.e., the use of a panel instead of the Selecting Officials directly interviewing the candidates she would have been selected. The previous decision was not persuaded by Complainant's arguments and found that she failed to show that she was subjected to discrimination as she alleged.
REQUEST FOR RECONSIDERATION
In her request for reconsideration, Complainant contends that the statements made by the selecting officials were not only subjective but in numerous instances were erroneous and or completely false. Complainant notes that the since the appellate decision, the Agency now requires that all selections be done by a panel or committee to reduce the possibilities of discriminatory practices by a single selecting official. Complainant maintains that the Commission misconstrued her position regarding not using a panel for the selection of both of these positions. She contends that her position is that by sidestepping the general policy of using a committee or panel in both instance where she was a candidate for the position, the Commission should have found that this gave the appearance of impropriety.
Moreover, Complainant contends that with respect to the Deputy Business Operations Manager position, the Agency violated OPM's regulation because by interviewing only 6 of the 17 candidates referred for the position, the Agency did not interview those under special hiring authority, which included persons with disabilities, veterans, and four other female candidate that were qualified for the position. Complainant asserts that had a more complete investigation been done the evidence would have shown an inference of discrimination.
Further, Complainant contends that selecting official 1 claimed that the selectee was more qualified than she was because he had a wider range of supervisory and Agency experience at multiple levels. However, Complainant maintains that selectee 1's supervisory experience was only on one level, and it was for wage grade employees only. Whereas she had 26 years at the Agency, had supervisory experience on more than 4 levels and an additional 20 years more experience than the selectee. Selecting official 1 also stated that the selectee was better qualified because he had completed the management and leadership course, and she had not. Complainant contends however that this is another false statement. She maintains that had the selecting official and the Agency reviewed the files, they would have seen that she also completed the BLM management and leadership course. Complainant believes that this clearly supports an inference of discrimination.
Additionally, Complainant argues that in both instances, she had more experience specific to the positions than either of the eventual selectees. She asserts that this would have been glaringly apparent had her qualifications been reviewed as compared to both of the eventual selectees. Based on the above arguments Complainant requests that the Agency's final decision be overturned.
In response, the Agency contends that Complainant's request for reconsideration should be denied as she has not shown that the appellate decision involved a clearly erroneous interpretation of material fact or law or that the decision will have a substantial impact on the policies, practices, or operations of the Agency. The Agency contends that it articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to show that those reasons were pretext for discrimination. Further, the Agency maintains that Complainant has offered no evidence that shows that the Agency violated a policy by its selection methods.
ANALYSIS AND FINDINGS
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. We 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), 9-17 (November 9, 1999). A reconsideration request is an opportunity to demonstrate that the previous decision 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. Accordingly, we find that Complainant failed to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the agency. The Commission has held that merely rearguing the facts of a case is improper in a request for reconsideration. Bartlomain v. United States Postal Service, EEOC Request No. 05910436 (October 10, 1991).
Furthermore, we find that, notwithstanding the error that was made with regard to Complainant's attendance at the Agency's leadership Academy, the preponderance of the evidence does not indicate that Complainant's qualifications were "plainly superior" to those of the selectees. The record establishes that both Selectee 1 and Selectee 2 possessed extensive relevant experience for their respective positions. Like the previous decision, we find that Complainant's number of years of experience, alone, is insufficient to establish that her qualifications were observably superior. Moreover, we note that Complainant does not deny that she had a bad attitude and made unprofessional statements during the interviews, which was attested to by two different selecting officials. Finally, we note that the fact that the Agency has since changed its policy and now requires that panels be convened for vacancy selections does not establish in and of itself that the prior practice discriminated against Complainant.
Accordingly, the decision in EEOC Appeal No. 0120121382 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
__12/12/12________________
Date
2
0520120560
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120560