01984661
07-20-2000
Mabel Penn, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, (Bureau of Indian Affairs) Agency.
Mabel Penn, )
Complainant, )
)
v. ) Appeal No. 01984661
) Agency No. BIA95053
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
(Bureau of Indian Affairs) )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that the agency properly dismissed
Claims 1-4 pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for untimely EEO contact.<1> In addition, the
Commission finds that the agency properly decided that the agency did
not discriminate against complainant in Claims 5-7.
The complainant alleged that she was discriminated against on the basis
of reprisal when:
she was hired as a Home Living Specialist but was detailed to an Academic
Supervisor position from August through September 1993;
she was hired as a Home Living Specialist but was detailed to a Guidance
Counselor position for the remainder of the 1993-1994 school year;
she was hired as a Home Living Specialist but was detailed the entire
1993-1994 school year and was rated on Home Living Specialist duties
rather than Academic Supervisor and Guidance Counselor duties;
her position as Home Living Specialist was abolished during a reduction
in force in October 1994;
she was assigned to establish an Intensive Residential Guidance (IRG)
Program but was not given any guidelines, job descriptions, training,
or information on how to establish the program;
she was not selected for a Guidance Counselor position on February 2,
1995; and
she was not selected for an Elementary Teacher position in February
1995.
According to the record, the alleged discriminatory events in Claims 1-4
occurred between August 1993 and October 1994. However, complainant did
not initiate contact with an EEO Counselor until March 31, 1995, which
is well beyond the forty-five (45) day limitation period. On appeal,
complainant has not made any arguments or presented any evidence to
warrant an extension of the time limit for initiating EEO contact.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain claims within a complaint when
the complainant alleged a continuing violation. A continuing violation
is a series of related discriminatory acts, one of which fell within the
time period for contacting an EEO Counselor. See Reid v. Department of
Commerce, EEOC Request No. 05970705 (April 22, 1999).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. It is necessary to determine whether the acts are
interrelated by a common nexus or theme. See Vissing v. Nuclear
Regulatory Commission, EEOC Request No. 05890308 (June 13, 1989).
Should such a nexus exist, complainant will have established a continuing
violation and the agency would be obligated to overlook the untimeliness
of the complaint with respect to some of the acts challenged by
complainant.
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
In this case, Claims 1-4 are isolated employment decisions and are
not interrelated to Claims 5-7. Since complainant did not establish
a continuing violation and did not contact the EEO contact within the
applicable time frames, Claims 1-4 were properly dismissed. Accordingly,
the agency's decision dismissing Claims 1-4 is AFFIRMED.
To determine discrimination in the absence of direct evidence,
a claim must be examined under the three-part analysis originally
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.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. 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.
While the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination.
The Commission finds that the agency offered legitimate, nondiscriminatory
reasons for its actions. First the agency stated that complainant was
assigned to develop and implement the IRG program. Since the program was
new, the agency did not have any specific job descriptions or guidelines
to offer complainant. However, complainant had resource personnel from
other schools that developed the IRG program and an agency contact person
who was responsible for overseeing other IRG programs for the agency.
Secondly, the agency stated that complainant was not selected for the
Guidance Counselor or Elementary Teacher position because more qualified
candidates were selected. Specifically, the agency stated that the
selectee for the Guidance Counselor position had more creative ideas.
The selectee was recommended by a committee composed of one parent,
one school board member, the supervisor from the department wherein
the vacancy existed, as well as one employee from that department.
The committee recommended the selectee based on her expression of new,
creative, and more contemporary ideas for the children; whereas, the
other applicants, including complainant, just mentioned the same things
that had been used for years. With regard to the Elementary Teacher
position, the committee recommended the selectee because she was the
most experienced applicant.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory incidents, complainant now bears the
burden of establishing that the agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this by
showing that the agency was motivated by a discriminatory reason. We find
that complainant failed to meet this burden. Complainant has not shown
that reprisal was the true motive behind her special assignment to the
IRG program or her non-selection for the two positions. Accordingly, the
agency's finding of no discrimination regarding claims 5-7 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 20, 2000
________________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On 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.