01974040
05-14-1999
Vel D. Martin, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Vel D. Martin v. Department of the Army
01974040
May 14, 1999
Vel D. Martin, )
Appellant, )
) Appeal No. 01974040
v. ) Agency No. BREQFO9508F0390
) Hearing No. 360-96-8604X
Louis Caldera, )
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), color
(Black), and sex (female), 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 she was given misinformation which caused
her time limit for eligibility in the agency's Military Spouse Preference
Program (MSPP) to expire. The 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 career-conditional civilian at the agency's Fort Ord, California
base. As a result of her husband's transfer to the agency's base at
Fort Bliss, Texas, appellant sought to participate in the agency's MSPP,
whereby the spouse of a transferred military employee receives preference
in hiring for available positions with the agency, for a period of three
(3) years. Appellant separated from her position at Fort Ord in February,
1992, and was given eligibility for spouse placement under the MSPP, with
the three year limit beginning to run on February 10, 1992. In February,
1994, appellant was offered a position with the agency, but she sought
approval from a Staffing Assistant (SA) with the Directorate of Civilian
Personnel at Fort Bliss to decline the position as she was then a full
time student. While the MSPP requires a participant to accept the first
position offered, appellant was granted an exception by the agency's
Zone Coordinator for the MSPP, and was allowed to decline the offered
job with the provision that she be removed from the MSPP while she was
a student but could reregister upon graduation in August, 1994. The SA
forwarded a copy of the letter granting the exception to appellant, but
she contends that she did not receive it. In March, 1995, appellant
was informed that her career-conditional status expired as the three
year MSPP limit lapsed.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on July 12, 1995.
At the conclusion of the investigation, appellant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a
Recommended Decision (RD) without a hearing, finding no discrimination.
The AJ noted that appellant established a prima facie case of race and
sex discrimination because she is a member of protected groups and was
subject to an adverse employment action by the agency which caused her
eligibility in the MSPP to expire.<1> The AJ found that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
namely, that her exception request was granted pursuant to agency rules
and regulations, and she was never misinformed. The AJ concluded that
appellant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The agency's FAD adopted the AJ's RD. Appellant makes no new contentions
on appeal, and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to present
evidence that any of the agency's actions regarding her participation
in the MSPP were motivated by discriminatory animus. We thus discern no
basis to disturb the AJ's findings of no discrimination which were based
on a detailed assessment of the record. Therefore, after a careful review
of the record 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:
5/14/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 We note that pursuant to Furnco Construction Co. v. Waters, 438 U.S.
557 (1979) and the circumstances of the instant case, the AJ did not
determine whether appellant was treated less favorably than similarly
situated employees not in her protected classes.