01981038
11-25-1998
Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Cassandra Simmons v. Small Business Administration
01981038
Novemnber 25, 1998
Cassandra Simmons,
Appellant,
v.
Aida Alvarez,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01981038
Agency No. 03-95-474
Hearing No. 320-96-8250X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning her allegation that the agency discriminated against her on
the bases of race (African-American), color (black), sex (female) and
reprisal (prior EEO activity) when her contract as a Voucher Examiner was
not renewed on December 23, 1994, in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960.001.
For the following reasons, the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was employed as
a Voucher Examiner, GS-04, at the agency's Office of Financial Operations
(OFO) in Denver, Colorado. The investigative record reveals that in
August 1994, appellant served as a Voucher Examiner in the Administrative
Accounting Branch (AAB) and her contract had been extended to December
23, 1994. She was informed on December 12, 1994, that her contract would
not be extended beyond December 23, 1994. AAB's primary responsibility
was to provide loans to small businesses that were affected by natural
disasters. Consequently, the workload in AAB varied depending on the
number and types of disasters. The January 1994 Northridge earthquake
greatly increased the agency's 1994 workload. By the end of 1994, AAB's
workload had dramatically decreased. Additionally, by December 1994,
automation and the transfer of a number of functions further contributed
to a decreased workload. Appellant failed to present evidence that the
agency's projected work load for 1995 justified her retention.
Believing that she was the victim of discrimination, appellant
sought EEO counseling and, thereafter, filed a formal EEO complaint.
The agency accepted the complaint for investigation and complied with
all of our procedural and regulatory prerequisites. Subsequently,
appellant requested a hearing before an EEOC Administrative Judge (AJ),
which was held on August 12-13, 1997. At the conclusion of the hearing,
the AJ issued a Recommended Decision (RD) from the bench finding no
discrimination. In his RD, the AJ concluded that although appellant
established a prima facie case of race and sex discrimination, she failed
to show that the agency's actions were pretextual.<1> Specifically,
the AJ reasoned that appellant failed to show that her contract was
not renewed for any reason other than the fact that the agency's
workload had decreased. With respect to reprisal discrimination,
the AJ concluded that appellant failed to establish a prima facie case.
The AJ reasoned that appellant did not engage in protected activity until
December 15, 1994, when she sought EEO counseling because her contact
was not renewed. The AJ further concluded that this activity occurred
after the decision not to extend the contract had already been made.
Thereafter, the agency adopted the RD and issued a FAD, dated October
10, 1997, finding no discrimination. It is from this agency decision
that appellant now appeals. On appeal, appellant reiterated previously
submitted contentions.
After careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's RD sets forth the relevant facts, and properly analyzes
the appropriate regulations, policies and laws. The Commission discerns
no basis to disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Nov 25, 1998
______________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1We note that the AJ did not include color as a basis of discrimination.
Nevertheless, the disposition of this matter is not disturbed by that
ommission.