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.