01977007
12-10-1999
Kay L. Blythe, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Kay L. Blythe, )
Complainant, )
) Appeal No. 01977007
v. ) Agency No. F964889
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of race (White) and age (7/17/45), in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a part-time GS-12 Employee Relations Specialist in the Career
Guidance Program at the agency's Personnel Division at FBI Headquarters in
Washington, D.C. Complainant claims that she was discriminated against in
October 1996 when the Personnel Division was reorganized and the Section
Chief (SC) decided to abolish the Career Guidance Program and reassign
her to a Personnel Staffing Specialist position in the Staffing Unit
(SU) where she anticipated being subjected to a hostile work environment
based on race.<2> She also claims that SC discriminated against her
when he refused her request to be placed in several proposed alternative
positions in lieu of the assignment to the SU. Complainant contends
that because of SC's animus toward �older� White women, only she and
three other �older� White women were adversely affected by the decisions
made in implementing the reorganization.
At the conclusion of the complaint investigation, complainant requested
a FAD, which was issued by the agency on August 26, 1997, finding no
discrimination. On appeal, complainant contends that the agency's
investigation was inadequate, and requests a hearing.<3> She also
contends that affidavit testimony presented by SC and the other witnesses
is not credible. Additionally, she submits statements from two former
subordinates of SC suggesting that he shows favoritism toward young Black
women to the detriment of �older� White women. The agency requests that
we affirm its FAD.
Although it does not specifically address whether complainant established
a prima facie case of race or age discrimination, the FAD found that she
presented no evidence that race or age were factors in SC's decisions.
Moreover, the FAD found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions, which were not shown to be
untrue or a pretext for discrimination. See St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993). Based on the standards set forth in
McDonnell Douglas v. Green, 411 U.S. 792 (1973),and Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979), we concur with the agency's conclusion.
Review of the record discloses that the Career Guidance Program
was proposed for elimination prior to SC's arrival, and that the
staffing had dwindled down to complainant's sole part-time position.
SC testified that he did not consider the part-time career counseling
services of this program to be so important as to warrant a separate
program, and that for the sake of efficiency, he abolished the program
and transferred this counseling function to the SU. Testimony from two
intermediate supervisors and an associated staff person reveals that
they each attempted to dissuade SC from this action, but that he was not
convinced. However, each witness stated that although they disagreed
with the decision, it was clear that SC's decision was based on his
opinion of the program itself, and that complainant's race and age were
not factors. Moreover, despite complainant's contention to the contrary,
these witnesses, all White women over the age of 40, also testified
that they too were transferred by SC under the reorganization, but did
not consider this to be an �adverse action.� We note that complainant
retained her pay grade, job status, and part-time schedule in the transfer
at issue, which further belies her claim of discrimination. Furthermore,
testimony from one of these witnesses, the Unit Chief, reveals that she
was the one responsible for determining that complainant's �alternative
reassignments options,� were not viable, and confirmed that SC did make
inquiries about the feasibility of complainant's proposed reassignment
options.
Furthermore, we disagree with complainant's contention that the affidavit
testimony is not credible. Instead, we find that the statements
in all four affidavits are consistent and corroborate each other,
strongly suggesting that they are accurate. Moreover, complainant
does not produce any objective evidence to support this contention,
merely explaining her belief that identified portions of this testimony
are untrue. Additionally, although we have reviewed and considered the
statements of SC's alleged former subordinates, we do not accord them
much weight because they are unsworn and otherwise unauthenticated.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the 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 the 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 the 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:
December 10, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
__________________________
Equal Employment Assistant1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2Complainant's contention that she would be subjected to a hostile work
environment in the SU is speculative, and not an issue properly before
the Commission at this time. However, complainant is advised to seek
EEO counseling should she experience conditions in the SU which lead
her to believe that she is a victim of such harassment.
3We have carefully reviewed the record and find that there is sufficient
evidence upon which to base the instant determination. Furthermore,
we note that complainant forfeited her right to a hearing when she
requested a FAD in her May 27, 1997, correspondence responding to the
agency's notice that she could opt for either a hearing or a FAD. 64
Fed. Reg. 37644,37656, (1999) (to be codified at 29 C.F.R. �1614.108(f)).