Bettie J. Conley, Complainant,v.Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 21, 2001
05A10339 (E.E.O.C. Jun. 21, 2001)

05A10339

06-21-2001

Bettie J. Conley, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.


Bettie J. Conley v. Department of the Navy

05A10339

June 21, 2001

.

Bettie J. Conley,

Complainant,

v.

Robert B. Pirie, Jr.,

Acting Secretary,

Department of the Navy,

Agency.

Request No. 05A10339

Appeal No. 01991865

Agency No. 94-49941-004

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Bettie

J. Conley v. Department of the Navy, EEOC Appeal No. 01991865 (December

8, 2000). EEOC Regulations provide that the Commission may, in its

discretion, 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).

In her underlying complaint, complainant alleged that the agency

discriminated against her on the bases of race (Black) and reprisal

(prior EEO complaints) when she was moved out of the EEO Office and a

Labor Relations Specialist (LRS) (White) was moved into the EEO Office

by the Human Resources Office (HRO). In her request, complainant: (a)

denies that she told the Workforce Relations Supervisor (WRS) or anyone

else that she wanted the position of Affirmative Employment Program

(AEP) Manager to which she was assigned; (b) argues that in assigning

the LRS to the EEO Complaints Manager position, which was the position

complainant wanted, the agency violated its own priority placement policy

(PPP) by bypassing the priority placement stopper list and not taking

complainant's superior complaint management skills into consideration;

and (c) contends that evidence of discrimination could be found in

the fact that the LRS was given a supervisory position with adequate

support staff to carry out her duties, while complainant was not given

a supervisory position or adequate resources to discharge her duties

as AEP Manager. Complainant also contends that the agency brief in

opposition to her request was untimely filed and should not be considered.

In its brief, the agency notes that the HRO Director averred in his

investigative affidavit that complainant wanted to work in the AEP.

The agency further notes that during the time period when complainant

was assigned to the AEP Manager position, the HRO was undergoing a

consolidation of four HRO offices and eight EEO offices into a single

office. Consequently, there was a need to constantly review workload

and to staff the organization to meet new workload needs, which resulted

in frequent adjustments to the organizational structure and staffing.

It argues that complainant's contention that the HRO violated the PPP

is not supported by any facts, as the Department of Defense, which

administers the program, did not uncover any violations in its frequent

reviews of the program. Finally, the agency acknowledges that its brief

was submitted untimely, but contends there were extenuating circumstances

inasmuch as the delay occurred because the agency did not receive the

docketing statement from the EEOC's Office of Federal Operations until

March 15, 2001.

As a preliminary matter, we note that the agency did not receive the

docketing statement until March 15, 2001, and we have therefore considered

the arguments set forth in the agency's brief.

After a careful review, the Commission finds that its prior decision

properly determined that complainant failed to present evidence that more

likely than not, the agency's articulated reasons for its actions were

a pretext for discrimination. In reaching this conclusion, we observe

that the matters challenged by complainant stemmed from the agency's

decision to consolidate the HRO and EEO offices into one, which required

organizational restructuring. We further note that it is a prerogative

of management to set policies and carry out personnel decisions, which

should not be second-guessed by a reviewing court or an administrative

tribunal absent evidence of unlawful motivation. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).

Accordingly, after a review of the complainant's request for

reconsideration, the agency brief in opposition, the previous decision,

and the entire record, the Commission thus 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. The decision in EEOC Appeal

No. 01991865 remains the Commission's final decision. There is no

further right of administrative appeal on the decision of the Commission

on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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 (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

June 21, 2001

Date

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