01a43797
03-11-2005
Nadia E. Mckee, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Nadia E. Mckee v. Department of Defense
01A43797
03-11-05
.
Nadia E. Mckee,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A43797
Agency No. DDFY0309
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. For the following reasons, the Commission affirms
in part and reverses in part the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as an English as a Second Language Teacher at the Department of Defense
Education Activity, Fort Stewart School System. Complainant sought EEO
counseling and subsequently filed a formal complaint on April 7, 2003,
alleging that she was discriminated against:
(1) Based on race (Hispanic)<1> and national origin (Puerto Rican) when:
(a) On February 4, 2003, the Principal denied her request to attend
professional development training while other teachers of non-Hispanic
origin had been permitted to attend;
During the previous year, she had requested and had been denied permission
to attend the Teachers of English of Other Languages (TESOL) conference in
Maryland on March 25-29, 2003, and the TESOL symposium in North Carolina
on May 29-30, 2003; and
On or about May 30, 2003, the Principal did not provide sufficient funds
for program requirements, including textbooks, workbooks, consumables,
manipulative or language games.
Based on reprisal for previous EEO activity when:
On or about July 10, 2003, she was not provided training to be updated
on the Language Assessment Scales and to implement the new program at
Brittin Elementary School;
On or about July 10, 2003, she was not provided the necessary time
allotment to review the English as a Second Language (ESL) Program at
both Brittin and Diamond Elementary Schools; and
On or about July 10, 2003, she was not allowed time to move her
instructional materials from one school to the other prior to the
beginning of the school year, nor paid for the time she spent moving
her materials.<2>
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 complainant failed to show that
similarly situated employees outside of complainant's protected groups
were treated more favorably under similar circumstances. The agency
further concluded that complainant failed to show that the agency's
articulated reasons for its actions were a pretext for either unlawful
retaliation or discrimination.
On appeal, complainant contends that she was denied opportunities to
attend training in her respective field while other non-Hispanic teachers
were permitted to attend training in their respective fields. Complainant
further contends that the agency improperly dismissed two of her claims
for untimely EEO counselor contact and �poorly� investigated her other
claims because it did not interview all of her witnesses.
We first turn to a procedural matter raised by complainant on appeal, the
agency's dismissal of two claims for untimely EEO counselor contact.<3>
The record shows that the agency dismissed allegations raised by
complainant that the agency discriminated against her based on race
(Hispanic) and National Origin (Puerto Rican) when: (1) On October 1,
2002, a teacher made a disparaging comment about complainant's accent;
and (2) On November 30, 2002, the agency denied her request to attend
TESOL training in Puerto Rico. The record further shows that complainant
first contacted an EEO counselor regarding these matters on January 29,
2003, more than 45 days after the alleged discriminatory events occurred.
Accordingly, the agency dismissed both claims on the grounds of untimely
EEO counselor contact.
EEOC regulation 29 C.F.R.� 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of an EEO counselor within
45 days of the matter alleged to be discriminatory or, in the case
of a personnel action, within 45 days of the effective date of the
action. Although careful compliance with the time limits generally is
required of parties alleging discrimination, Commission regulations
further provide that the 45-day period may be extended where the
individual shows that he or she was not notified of the time limit and
was not otherwise aware of it, or for other reasons deemed sufficient
by the agency or the Commission. 29 C.F.R. �1614.105(a)(2).
On appeal, complainant states that she was not aware of the 45 day
time limitation for contacting an EEO counselor. The Commission has
consistently held that where there is an issue of timeliness, the
agency bears the burden of obtaining sufficient information to support a
reasoned determination as to timeliness. Williams v. Dept. of Defense,
EEOC Request No. 05920506 (August 25, 1992).
Here, we find that the agency has not met its burden. The record is devoid
of any evidence that complainant had actual or constructive knowledge
of the time line for contacting an EEO counselor. For example, there is
no evidence in the record that EEO posters containing the time line for
initiating EEO contact were on display in complainant's work facility. Nor
does the agency provide any other evidence that complainant had actual
or constructive notice of the applicable time lines for contacting an
EEO counselor. Clearly, it is the burden of the agency to have evidence
or proof to support its final decision. See Marshall v. Department of
Navy, EEO Request No. 05910685 (September 6, 1991). Accordingly, the
agency's decision to dismiss these claims for untimely EEO counselor
contact is reversed and these issues are remanded to the agency for
further processing in accordance with this decision and the Order set
forth herein.
With regard to complainant's contention that the complaint was �poorly�
investigated, we find that
the agency's investigation of the instant complaint met the requisite
level of development for determining whether or not the complained of
actions resulted from unlawful discriminatory motive. See 29 C.F.R. �
1614.108. Complainant calls into question the agency's decision not
to interview all of her witnesses. However, the record evidence shows
that complainant identified six witnesses, four of whom were not shown
to have first hand knowledge of the subject matter of the instant
complaint. With regards to two of these witnesses, complainant asserts
in correspondence dated October 2003, that the witnesses �left the
agency last year� and were stationed overseas. ROI at Tab 322. Hence,
by complainant's own account, these witnesses were no longer employed
at the School in February 2003, the relevant time period of the instant
complaint. Two other witnesses complainant identified were current or
former union representatives who complainant asserted she contacted about
her �problem with the administration.� ROI at Tab 322-322. Hence, these
witnesses would not have first hand knowledge of the subject matter of
the instant complaint. The other two prospective witnesses identified
by complainant were interviewed by the agency and their testimony was
included in the investigative file. ROI at Tabs 175, 187. Hence, we
find the investigative file contains sufficient information upon which
to determine whether the agency's actions were the result of unlawful
discrimination.
Turning to the merits of the instant complaint, the Commission finds
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. The agency articulated that complainant's request
to attend out-of-state training was denied due to its high cost. The
agency further articulated that teachers who were allowed to attend
expensive and/or out-of-state training during the relevant period did so
at their own expense, unless the training was directed by headquarters.
In the instant case, there is no evidence that the out-of-state training
complainant requested to attend was directed by headquarters. Furthermore,
the agency offered complainant the opportunity to attend the out-of-state
training at her own expense with administrative leave provided by the
agency, as it had done for other employees. With regard to complainant's
claim that she was denied funds for ESL program requirements, the
agency articulated that funding for the ESL program, was comparable to
its funding of other special programs. The agency further articulated
that complainant was afforded the same amount of time as other resource
teachers to work on and review her program and that like other resource
teachers, complainant was required to move and establish her program at
the beginning of the school year, not prior to the beginning of the school
year. The record is void of any persuasive evidence to show that agency
officials were motivated by discriminatory animus toward complainant's
protected status with regard to the complained of actions.
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 finding
no discrimination but reverse the agency's dismissal of two claims
for untimely EEO counselor contact and remand these claims for further
processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
____03-11-05______________
Date
1 Although complainant alleged discrimination
on the basis of race (Hispanic), the Commission notes that it considers
the term "Hispanic" to be a national origin rather than a racial group.
2 Complainant raised four other allegations in her initial contact with
an EEO counselor on January 29, 2003. In a letter sent to complainant
on September 5, 2003, the agency dismissed these allegations for
untimely EEO counselor contact or for failure to state a claim. Report of
Investigation, hereinafter, ROI at Tab E. The FAD set forth the rationale
for the dismissal.
3 Complainant did not raise on appeal the agency's dismissal of two
claims for failure to state a claim, therefore this matter will not be
addressed herein.