01a45928
04-17-2006
Emma Monroig, Complainant, v. Gerald A. Reynolds, Chairman, U.S. Commission on Civil Rights, Agency.
Emma Monroig v. U.S. Commission on Civil Rights
01A45928
04-17-06
.
Emma Monroig,
Complainant,
v.
Gerald A. Reynolds,
Chairman,
U.S. Commission on Civil Rights,
Agency.
Appeal No. 01A45928
Agency No. 37
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as the agency's Solicitor in the Office of the Solicitor at the agency's
headquarters in Washington, DC (�facility�). Complainant sought EEO
counseling and subsequently filed a formal complaint on February 18,
1999, alleging that she was discriminated against on the bases of national
origin (Hispanic), sex (female), age (D.O.B. 1/12/44 ), and reprisal for
prior EEO activity when on September 18,1998, the agency's Commissioners
voted to adopt a regulation eliminating the Office of the Solicitor and
the position of Solicitor. Complainant alleges that the elimination of
the Solicitor position was retaliation for her prior protected activity
and requests reappointment to her former position of Solicitor.<1>
We note that complainant sought to amend her formal complainant in the
instant case to include alleged acts of discrimination which occurred
after the Solicitor position was eliminated on September 18, 1998 as
supporting evidence of the initial discrimination allegation.
Believing she was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned formal EEO complaint. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively, to
receive a final decision by the agency. Complainant requested a hearing
before an EEOC Administrative Judge (AJ). Subsequently, on July 20,
2004, complainant requested that the AJ grant her permission to withdraw
her hearing request and order the agency to issue a final decision.
On July 22, 2004, the AJ granted complainant's request and issued an
order instructing the agency to issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
that the position of Solicitor was eliminated due to discriminatory or
retaliatory animus. In support of this finding, the FAD noted that a
1997 report by the Government Accounting Office (GAO) described the
agency as operating under obsolete documentation of its operating
structure. The FAD noted that following the GAO's recommendations,
the agency undertook a review and revision of its regulations and took
other actions to comply with the GAO report. In an attempt to respond
to the GAO report, the agency proposed in 1998 to eliminate references
to the Solicitor's Unit and references to the then-vacant position of
Solicitor. However, the FAD noted that the Solicitor's position was
never eliminated while it was vacant. Further, the FAD found that the
elimination or non-operational status of the Solicitor's Unit prior to
1998 was reflected in the absence of any reference to the unit in the
Agency's organizational chart in effect at the time of the GAO audit
and the absence of staff assigned to the unit. Thus, at the time of
the 1998 vote by the agency's Commissioner's, the agency acknowledged
that the Solicitor's Unit was eliminated in or about 1986 under a major
reorganization.<2>
As a result, the FAD found that the GAO report on the agency's
management practices was the reason the Commissioners voted to update its
organizational chart and regulations. The FAD noted that the GAO report
was of concern to the agency and Congress, as it was used by Congress to
determine whether the agency should be re-authorized or provided with an
appropriation to continue operating. The FAD found that the agency was
mindful of congressional interest during the vote to reorganize the agency
in 1998. As such, the FAD found that the discussions of the agency's
Commissioners establishes that deleting references to the Solicitor's
Unit and the position of the Solicitor was undertaken to demonstrate
responsiveness to the GAO report and to prevent a congressional hearing,
and was not done due to discriminatory or retaliatory animus.
On appeal, complainant alleges that the agency erred in failing to amend
her formal complaint of
discrimination in 2004 to include alleged acts of discrimination which
occurred after the September 18, 1998 meeting at which the agency's
Commissioners voted to eliminate the Solicitor's Unit and the position of
the Solicitor. Further, complainant alleged that the FAD erred in finding
that the GAO report was the sole reason that the Solicitor's Unit and
the position of the Solicitor were eliminated by a vote of the agency's
Commissioners in 1998. The agency requests that we affirm its FAD.
Initially, the Commission finds that the agency did not err in denying
complainant's request to amend her formal complaint in 2004. We note
that on July 22, 2004, prior to the issuance of the agency's FAD,
complainant filed a request with the agency to amend her formal complaint.
However, the agency's EEO Director did not amend the complaint and has
not conducted an investigation of the events which occurred after the
Solicitor position was eliminated. Complainant alleged that she sought
to amend her complaint as events which occurred after the 1998 vote by the
agency's Commissioners to eliminate the Solicitor's Unit and the position
of the Solicitor provided additional evidence to support her claim of
discrimination. The agency's EEO Director denied complainant's request
as he found that the events which occurred after 1998 did not raise a new
claim in and of itself. Nevertheless, we concur with the agency's denial
of complainant's request to amend her complaint. The record indicates
that complainant sought to amend her formal complaint two (2) days after
the date she asked the AJ to withdraw her hearing request and on the same
date the AJ granted her request to withdraw the hearing request. We note
that the investigation of the instant case was concluded in March of 2004,
and complainant subsequently requested a formal hearing before the AJ.
As such, the complainant remained under the jurisdiction of the EEOC's
San Antonio District Office until the request to withdraw the hearing
request was denied. As stated by the agency, 29 C.F.R. � 1614.106(d)
allows the amendment of a complaint at any time prior to the conclusion
of the investigation to include issues or claims like or related to
those raised in the complaint. As complainant failed to amend her
complaint prior to the conclusion of the investigation in March of 2004
as provided for in the regulation, she could not amend the complaint two
(2) months after the investigation was concluded. In addition, although
29 C.F.R. � 1614.106(d) provides that a complainant may file a motion
with the AJ to amend a complaint to include issues or claims like or
related to those raised in the complaint, the record does not indicate
that complainant sought to amend her complaint upon motion to the AJ.
Rather, complainant sought to amend her complainant by request to the
agency on the same day the AJ issued an order instructing the agency to
issue a final decision. As such, we concur with the agency's denial of
complainant's request to amend her complaint in May of 2004.
Addressing complainant's second contention on appeal, the Commission
concurs with the agency's determination that complainant failed to
establish that the position of Solicitor was eliminated by a vote of
the agency's Commissioners in 1998 due to discrimination or retaliation.
We note that a claim of disparate treatment based on indirect evidence
is examined under the three-part analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to
prevail, she must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration
was a factor in the adverse employment action. McDonnell Douglas,
411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the complainant bears the ultimate responsibility to persuade the
fact finder by a preponderance of the evidence that the agency acted on
the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993). The elements of the prima facie case are determined by
the individual circumstances of each case and the bases of discrimination
alleged; but regardless of the specific action at issue, complainant may
establish a prima facie case by demonstrating: 1) that she is a member
of a protected group; 2) that she is similarly situated to employees
outside of her protected group; 3) and that she was treated differently
than those employees. Potter v. Goodwill Industries of Cleveland, Inc.,
518 F.2d 864, 865 (6th Cir. 1975).
In a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish
a prima facie case of reprisal by showing that: (1) she engaged
in a protected activity; (2) the agency was aware of the protected
activity; (3) subsequently, she was subjected to adverse treatment
by the agency; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000). This established order
of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be
followed in all cases. Where the agency has articulated a legitimate,
nondiscriminatory reason for the personnel action at issue, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460
U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We note that the agency articulated legitimate, nondiscriminatory
reasons for its actions in eliminating the Solicitor position. Namely,
we find that the evidence establishes that the agency voted to update
its organizational chart and regulations in response to the 1997 GAO
report detailing agency management practices. The GAO report criticized
the agency for not accurately providing public notice of its operational
structure in its regulations, and made specific recommendations including
updating the agency's structure in the Code of Federal Regulations.
In effect, the actions by the agency's Commissioners in 1998 merely
formalized in the agency's regulations the organizational chart which had
been in effect since approximately 1986, in that there was no functioning
Solicitor's Unit and the position of Solicitor reported to the agency's
Office of General Counsel. We find no dispute that in 1998, the agency's
reported structure and functions did not reflect its actual structure
and function. As such, the record indicates that the vote by the agency's
Commissioners to delete the organizational references to the Solicitor's
Unit and the position of the Solicitor was done to respond to the GAO
report and to prevent a congressional oversight hearing of the agency.<3>
We further find that complainant failed to proffer evidence which
demonstrates that the agency's articulated reasons for its actions
were more likely than not a pretext for discrimination or retaliation.
In so finding, we disagree with complainant's contention that the FAD
relied on the GAO report as precedent in making its findings regarding
discrimination and/or retaliation. We note that the FAD found only
that the GAO report was the basis for which the agency relied upon in
voting to reorganize the agency's organizational chart. In addition,
we find no basis to conclude that any of the Commissioners retaliated
against complainant for her prior EEO activity in deciding to vote
to eliminate the position of Solicitor. In so finding, we note that
complainant filed her EEO complaints in 1995 and 1996 regarding her
reassignment, but the vote to eliminate the Solicitor's Unit and the
position of the Solicitor did not occur until 1998. In addition, we
find no evidence in the record which demonstrates that the transfer
of duties from the agency's Solicitor's Unit to the Office of General
Counsel was retaliatory in nature. We find that the record establishes
the organizational references to the Solicitor's Unit and the position
of Solicitor were deleted in direct response to the GAO report and
fear of increased congressional oversight, and the resulting structure,
procedures and programs of the agency necessitated the transfer of the
duties of the agency's Solicitor to the Office of the General Counsel.
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 (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (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
___04-17-06_______________
Date
1 We note that complainant previously filed EEO complainants in 1995
and 1996, alleging discrimination on the bases of race, national origin,
gender, age and retaliation when she was detailed to less complex work
in the agency's Public Affairs Unit in 1995 and she was then assigned
to the non-supervisory position of Attorney Advisor in the agency's
Office of General Counsel in 1996. In a decision dated September 13,
2000, an EEOC Administrative Judge (AJ) found that the agency retaliated
against complainant due to her prior EEO activity when she was demoted.
The AJ ordered the agency to reinstate her to the position of Solicitor
retroactive to the date of her reassignment. The Commission affirmed
the AJ's decision finding retaliation, and complainant was reinstated
as an agency Solicitor in 2002. See Monroig v. U.S, Commission on
Civil Rights, EEOC Appeal No. 07A10012 (April 25, 2002), req. for
recon. denied, EEOC Request No. 05A20762 (April 9, 2003). The Commission
stated that our decision addressed only complainant's demotion in 1996,
and did not address the legitimacy of the regulatory changes which
subsequently eliminated the position of Solicitor. However, the instant
complaint regarding the agency's vote in 1998 to change its regulations
to eliminate the Solicitor's Unit and the position of Solicitor was
filed by complainant in February of 1999. We note that complainant is
currently working as a GS-15 Solicitor in the agency's Office of the Staff
Director. Following her reinstatement to a Solicitor position in 2002,
complainant filed a petition for enforcement on June 9, 2003, alleging
that some duties of her former Solicitor position were not assigned to
her after she was placed in that position by the agency. We note that
the Commission recently denied complainant's petition for enforcement
and found that the agency complied with our decision in EEOC Appeal
No. 07A10012. We found that complainant had been reinstated into a
Solicitor position, with duties substantially similar to those stated
in her 1990 position description. See Monroig v. U.S. Commission on
Civil Rights, EEOC Petition No. 04A40029 (September 29, 2005). In that
decision, we stated that the issue of the transfer of complainant's
duties from the agency's Solicitor's Unit to the agency's Office of
General Counsel would be addressed in the instant decision.
2 The agency's organizational chart from 1990 shows no Solicitor's Unit
but a Solicitor who reported to the Office of the General Counsel.
3 The record indicates that the agency also experienced budgetary
problems in the 1980s and 1990s which was also a consideration by the
agency's Commissioners in voting to eliminate the Solicitor's Unit and
the position of Solicitor from the agency's organizational chart.