01981612
11-13-1998
Deborah King, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Deborah King v. Department of the Interior
01981612
November 13, 1998
Deborah King, )
Appellant, ) Appeal No. 01981612
v. ) Agency No. BIA-97-009
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
DECISION
Appellant timely initiated an appeal to from a final agency decision
("FAD") concerning her complaint of discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. The appeal is accepted pursuant to the provisions of EEOC Order
No. 960.001.
The issue presented is whether appellant proved, by a preponderance of
the evidence, that she was discriminated against based on her national
origin (Rosebud Sioux) or reprisal for prior EEO activity when she was
terminated from her temporary position as Administrative Support Assistant
("ASA"), GS-5.
At the time in question, appellant was employed by the agency's Fort Peck
Agency Office in its Branch of Engineering as an ASA. Appellant held a
temporary position not to exceed one year. Of the seven employees in the
branch, six were Assiniboine Sioux, while appellant is a Rosebud Sioux.
In July 1996, appellant filed a complaint alleging that branch employees
had harassed her because of her tribal affiliation. On September 30,
1996, appellant was terminated from her ASA position, although her
appointment had not been scheduled to end until June 1997. Appellant
timely sought EEO counseling and, subsequently, timely filed a formal EEO
complaint, which was accepted and processed by the agency. Thereafter,
appellant requested the issuance of a FAD without a hearing.
In its FAD, the agency noted that due to downsizing efforts, the
Central Office determined that the Billings Area Office would act as the
appointing authority for all agency offices in the applicable region.
As a result, the personnel clerk at the Fort Peck Agency Office,
a permanent employee, no longer had any work to do. Pursuant to the
reduction in force ("RIF") procedures, this clerk was assigned to the
ASA position which appellant held under a temporary appointment, and
appellant's temporary appointment was terminated. The FAD found that
the agency's actions were in accordance with applicable regulations and
that appellant had failed to establish discrimination or reprisal.
Appellant timely appeals. On appeal, appellant contends that she
was actually replaced by the secretary of the department, and not by
the personnel clerk. Appellant claims that only a few weeks later,
the secretary (whom appellant acknowledges was a permanent employee),
resigned "due to immoral conduct of personnel involved during the
transfer." Appellant states that the position was then filled by the
personnel clerk.
In its comments on the appeal, the agency notes that the decision to
move the appointing authority and to implement the RIF was made by the
Central Office, and not by appellant's supervisors. While the agency
found nothing in the record to support appellant's claim regarding her
immediate successor, the agency notes that appellant concedes that she
was replaced by a permanent employee under the RIF action. The agency
maintains that appellant remains unable to demonstrate that reprisal or
her tribal affiliation played a factor in the Central Office's decisions
or the implementation of the RIF.
This case involves a complaint alleging employment discrimination
based on national origin and reprisal. In any proceeding, either
administrative or judicial, involving an allegation of discrimination,
it is the burden of the complainant to establish a prima facie case of
discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); see also Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d 222 (1st
Cir. 1976). This means that the appellant must present evidence
such that, were it not rebutted, the trier of fact could conclude that
unlawful discrimination did occur. The burden then shifts to the agency
to articulate a legitimate, non-discriminatory explanation for its
action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). In this regard, the agency need only produce evidence sufficient
"to allow the trier of fact rationally to conclude" that the agency's
action was not based on unlawful discrimination. Id. at 257. Once the
agency has articulated such a reason, the question becomes whether
the proffered explanation was the true reason for the agency's action,
or mere pretext. The burden then shifts back to appellant to show, by a
preponderance of the evidence, that the agency was more likely motivated
by discrimination, or that the agency's proffered explanation is unworthy
of credence. Burdine, 450 U.S. at 256. While the burden of production
may shift, the ultimate burden of persuasion remains on appellant at all
times. See Board of Trustees of Keene College v. Sweeney, 439 U.S. 24,
25 n. 2 1978).
Where the agency has articulated legitimate, nondiscriminatory reasons for
its actions, a reviewing body may properly shift the inquiry from whether
the complainant has demonstrated a prima facie case to whether she has
demonstrated by a preponderance of the evidence that the agency's reasons
for its actions were merely a pretext for discrimination. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-17 (1983). Applying the analytical framework set forth above,
and assuming that appellant met her burden of establishing a prima
facie case of discrimination and reprisal, the Commission finds that
appellant failed to establish that the termination of her temporary
appointment constituted unlawful discrimination. Appellant has not
rebutted evidence that the Central Office made the determination to remove
appointing authority from the agency offices in the applicable region, a
determination which impacted upon the permanent employees in such offices.
Due to this impact, it was necessary to implement RIF procedures in the
agency offices. As a result, permanent employees were able to displace
temporary employees. Appellant has failed to show, by a preponderance of
the evidence, that the agency was more likely motivated by discrimination,
or that the agency's proffered explanation is unworthy of credence.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
it is the decision of the Commission to AFFIRM the FAD in this matter.
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. �1614.604(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. 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 (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 13, 1998
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations