01A10378
04-11-2002
Jane K. Gates, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Jane K. Gates v. Department of the Air Force
01A10378
April 11, 2002
.
Jane K. Gates,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A10378
Agency No. KV1M99018
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of race (Black), color (dark complexion), sex
(female), and in reprisal for prior protected EEO activity under Title
VII when on July 8, 1998, she was informed that she was being temporarily
reassigned to the position of Supervisory Recreation Specialist (Outdoor
Activities), and when on December 6, 1999, she received new information
concerning the closing of the Community Activities Center.
The record reveals that during the relevant time, complainant was
employed as a Supervisory Recreation Specialist (Community Activities)
at the agency's Kirtland Air Force Base, New Mexico. Believing she
was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on October 22, 1998. 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 that
the agency issue a final decision.
In its FAD, the agency concluded that assuming, arguendo, complainant
established a prima facie case of race, color, sex, and reprisal
discrimination, it articulated legitimate non-discriminatory reasons for
its actions which complainant failed to rebut as pretextual. On appeal,
complainant reiterates her contention that she was subject to unlawful
discrimination, and that the agency's articulated reasons are a pretext
for discrimination. The agency requests that we affirm its FAD.
Initially, with respect to the claim of reprisal, we find that complainant
has failed to establish a prima facie case in that she has not shown
that the alleged responsible management official (RMO) was aware of her
prior EEO complainant at the time complainant was reassigned. Further,
we find that assuming, arguendo, complainant establish a prima facie
case of race, color, and sex discrimination, the agency articulated
legitimate, non-discriminatory reasons for its actions. Specifically,
the agency states that complainant's prior position as Supervisory
Recreation Specialist (Community Activities) was no longer necessary
as the Community Activities Center in which complainant had worked
was no longer in existence. RMO stated that he believed complainant
would be better utilized by reassignment to an area where a need for her
services existed. In his affidavit, RMO further states that he made the
decision to detail complainant to the position of Supervisory Recreation
Specialist (Outdoor Activities), which was the same pay and grade as her
previous position, and where she could perform many of the same duties,
because despite the closure of the Community Activities Center he wished
to retain valuable employees in necessary positions at the facility.
Complainant has proffered no persuasive evidence to show that these
reasons are mere pretext for discriminatory or retaliatory animus.
With respect to complainant's allegation that on December 6, 1999,
she received new information concerning the closing of the Community
Activities Center, we find that complainant has failed to state a claim
in that she has not shown that she was aggrieved by any alleged agency
action.
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
April 11, 2002
__________________
Date