Nadia E. Mckee, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionMar 11, 2005
01a43797 (E.E.O.C. Mar. 11, 2005)

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.