01975845
11-05-1999
M. Elaine Rand, Appellant, v. Richard W. Riley, Secretary, Department of Education, Agency.
M. Elaine Rand, )
Appellant, )
) Appeal No. 01975845
v. ) Agency No. ED-9524000
)
Richard W. Riley, )
Secretary, )
Department of Education, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination 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. Appellant alleges that she was discriminated against on
the bases of race (White) and age (51) when: (1) her responsibility
for overseeing the Career Counseling contract was taken away; and (2)
she was denied a promotion to a GS-13 level position. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, we affirm the FAD.
The record reveals that during the relevant time, appellant worked as a
GS-12 Employee Development Specialist at the Training and Development
Center (TDC) in the agency's Office of Management in Washington, DC.
Believing the agency discriminated against her, appellant sought EEO
counseling and subsequently filed a formal complaint on January 6, 1995.
The agency accepted the complaint for processing and, at the conclusion
of the investigation, granted appellant thirty days to request a hearing
before an EEOC Administrative Judge. When appellant failed to respond,
the agency, in accordance with 29 C.F.R. � 1614.110, issued a final
decision finding no discrimination. Appellant raises no new arguments
on appeal. The agency requests that we affirm the FAD.
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),
the Commission agrees with the agency's finding of no discrimination.
In reaching this conclusion concerning her first allegation, we find that
appellant established prima facie cases of race and age discrimination
since similarly situated employees outside of her protected classes did
not have their job responsibilities taken away. The agency, however,
articulated a legitimate, nondiscriminatory reason for removing appellant
from her role as Project Manager on the Career Counseling contract.
The Acting Director of the TDC stated that she removed appellant in
order to establish harmony in the workplace after she realized that
disagreements between appellant and a colleague working on the contract
resulted in a very unpleasant working environment. Appellant contends that
the real reason she was removed from the contract was because the Acting
Director favored younger, Black employees like the colleague who was
not removed from the contract. Appellant, however, presents no credible
evidence to support her contention. We agree with the agency that the
Acting Director was attempting, in her temporary capacity, to resolve
sensitive personnel issues which affected the efficiency of her office.
Moreover, upon review of the record, we find that appellant displayed an
acrimonious and condescending attitude toward her co-workers and refused
to be a team player.
Concerning appellant's second allegation, we find that the agency
correctly determined that appellant failed to establish a prima facie
case of discrimination when she failed to prove that similarly situated
employees were promoted during the tenure of the TDC's Acting Director.
We also note that there were no promotion opportunities readily available
in the TDC during the Acting Director's four month tenure and that even
if such opportunities had been available, the Acting Director stated
that she was not in the position long enough to determine whether a
promotion would have been appropriate.
Therefore, after a careful review of the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations