01972875
03-17-1999
Valerie Blakemore, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Valerie Blakemore, )
Appellant, )
) Appeal No. 01972875
v. ) Agency Nos. BREQFO9508F0380
) BREQFO9601G0010
Louis Caldera, ) Hearing No. 360-96-8728X
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (African-American), sex
(female), and reprisal (prior EEO activity), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges she was discriminated against when: (1) she was
misinformed by her supervisors as to a vacancy for an Aerobic Coordinator,
NAF-2; and (2) the agency eliminated her position and failed to rehire
her. This appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a flexible Recreational Aide, NAF-1,<1> at the Family Fitness Center
(�Center�) at Fort Bliss in Texas. In late 1994, the Center's Aerobics
Coordinator<2> decided to resign from her position. At some point
thereafter, appellant asked the Center Coordinator (�Coordinator"),
her second-line supervisor, if he planned to fill the position. The
Coordinator informed appellant that he did not plan to fill the position
because he was assuming the duties of the Aerobic Coordinator. On or
about March 1, 1995, the Coordinator learned that he would be transferred
from Center at the end of March 1995. He stated that while performing
the time consuming duties of the Aerobic Coordinator, he realized that
the Center needed someone to fill the position on a full-time basis.
Through the personnel office, he posted a vacancy announcement for the
position on March 16, 1995. He stated that the announcement was posted
in the personnel office and the main gym facility located in another
building. The Coordinator also stated that he made the Center's staff
aware of the position. When the Coordinator received the best qualified
list from the personnel office, only one individual (�Selectee�) appeared
on the list. The Selectee was previously a NAF-1 Recreational Aide at
the facility. Appellant stated that because her supervisors informed her
that the posted position was for a Financial Manager, she did not apply.
Appellant further stated that it was not until June 1995 when she learned
that the Selectee was the new Aerobic Coordinator.
In the Fall of 1995, due to budget cuts, the Commandant of Fort Bliss
decided to eliminate all non-appropriated funds positions. As a result,
appellant was informed that her position was to be eliminated. The agency
converted three of the non-appropriated funds employees into appropriated
funds positions after the downsizing. Appellant alleged that she was
not converted because of her prior EEO activity. The agency stated
that appellant was not considered for the appropriated funds positions
because she had previously informed her supervisors that she would be
moving to Colorado at the end of 1995.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed formal complaints on August 1, 1995
and January 17, 1996. Appellant alleged racial discrimination in the
first complaint and reprisal discrimination in the second complaint.
At the conclusion of the investigation, appellant received copies
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). Following a consolidated hearing, the AJ
issued a Recommended Decision (RD) finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of race discrimination concerning the Aerobic Coordinator position
because similarly situated employees not in her protected class were
also adversely affected by the supervisor's alleged failure to post the
announcement at the Center. However, the AJ found that appellant had
established a prima facie case of reprisal discrimination concerning
the agency's elimination of her position and failure to rehire her.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the Aerobics
Coordinator announcement was properly posted, appellant's position was
eliminated because of a forced downsizing, and she was not considered
for a permanent position after the downsizing because she had informed
her supervisors that she would be moving to Colorado at the end of 1995.
Finally, the AJ found that appellant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination or retaliation. Specifically, the AJ found
that appellant failed to offer sufficient evidence demonstrating a
discriminatory motive by her supervisor with respect to his posting and
filling of the vacancy or by upper management's decision to eliminate
all of the Fort's non-appropriated positions.
On appeal, appellant contends that the AJ erred when: (1) he used leading
questions during his examination of a certain witness; (2) he failed
to require the appearance of a witness employed by the agency; and (3)
he misused certain facts in his RD. The agency provided no response to
the appeal.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We note that pursuant to 29 C.F.R. �
1614.109(c), an AJ has wide discretion in conducting a hearing, and
after a complete review of the record, including arguments and evidence
not specifically addressed in this decision, we find no reversible error
in the AJ's decision not to hear the appellant's requested witness nor
in the mode of his questioning during the hearing, and, therefore,
discern no basis to disturb the AJ's findings of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision which adopted the AJ's
finding of no discrimination.
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:
March 17, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 NAF stands for
non-appropriated funds.
2 The record indicated that the Aerobic Coordinator scheduled the aerobics
class and managed the finances of the program.