Bettie J. Conley, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 8, 2000
01991865 (E.E.O.C. Dec. 8, 2000)

01991865

12-08-2000

Bettie J. Conley, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Bettie J. Conley v. Department of the Navy

01991865

December 8, 2000

.

Bettie J. Conley,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01991865

Agency No. 94-49941-004

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.<1> The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated

against on the bases of race (Black) and reprisal (prior EEO complaints)

when she was moved out of the EEO Office and a White Labor Relations

Specialist (LRS) was moved into the EEO Office by the Human Resources

Office (HRO).

The record reveals that at the relevant time, complainant was employed as

an EEO Specialist, GS-230-12, at the agency's Naval Air Station facility,

Jacksonville, Florida. Believing she was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on February 4, 1994. 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. Although complainant initially requested a hearing, she later

requested that the agency issue a final decision without a hearing.

In its FAD, the agency concluded that while complainant had established

a prima facie case of reprisal, the agency in its turn articulated

legitimate, nondiscriminatory reasons for its actions, which complainant

was not able to show were a pretext for discrimination. On appeal,

complainant makes many contentions, which she asserts evidence a

discriminatory animus on the part of agency officials. Among these

is the fact that the Workforce Relations Supervisor (WRS) wrongly

stated that complainant did not complete her goals on case files in

the 1992-1993 performance rating, and that the WRS also contradicted

the agency's claim that complainant was interested in the position of

Affirmative Employment Program (AEP) Manager, to which she was assigned

by the agency reorganization. Complainant further contends that after

the agency made the White LRS the EEO Complaints Manager during its

reorganization of the HRO Office, it gave her resources and a program

that had already been well established by former deputy EEO officers

and specialists. In contrast, complainant received boxes of papers that

had not been filed or sorted and was told to establish the AEP program

with one GS-7 assistant. Although complainant then became depressed

from the resulting work load and harassment, the agency refused to move

her from the AEP Manager position. Finally, complainant asserts that

the whole EEO program was reorganized to accommodate the White LRS, who

was subsequently promoted to a GM-13 position as an EEO Investigator.

The agency requests that we affirm the FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the

Commission agrees with the agency that while complainant established

a prima facie case of reprisal discrimination, complainant then failed

to present evidence that more likely than not, the agency's articulated

reasons for its actions were a pretext for either race discrimination or

reprisal. discrimination. In reaching this conclusion, we note that the

HRO Director testified that he chose complainant to be the AEP Manager

because he determined that she would be the best person among the former

Deputy EEO Officers for that position, and that she had told him that she

was more interested in working in the AEP than in complaints management.

Similarly, contrary to complainant's contention on appeal, the record

reveals that complainant's former supervisor, the WRS, confirmed that

complainant had expressed a strong interest in the position.

As to complainant's contention that she was given inadequate

resources to do her job and had to start from scratch, as opposed to

the well-established program the White LRS inherited as EEO Complaints

Manager, we note that as the AEP was a new program, starting from scratch

was to be expected. Furthermore, complainant's present supervisor

testified that the staff help given complainant was appropriate for

her workload, and that complainant was not given more work than any

other GS-12 employee. Finally, as to complainant's contention that

the whole EEO program was reorganized to accommodate the White LRS, the

HRO Director testified that the White LRS was not placed into the GS-12

Complaints Manager position in order to groom her for a GS-13 position,

since the Director never intended to establish a GS-13 EEO Complaints

Manager position in the first place. In this regard, we note that when

the White LRS was promoted to grade

GM-13, it was in a different job category, that of EEO investigator, and

in a different location, Atlanta, Georgia, as opposed to Jacksonville,

Florida, where the reorganization took place.

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 8, 2000

Date

1 On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.