05A10339
06-21-2001
Bettie J. Conley, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Bettie J. Conley v. Department of the Navy
05A10339
June 21, 2001
.
Bettie J. Conley,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05A10339
Appeal No. 01991865
Agency No. 94-49941-004
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Bettie
J. Conley v. Department of the Navy, EEOC Appeal No. 01991865 (December
8, 2000). EEOC Regulations provide that the Commission may, in its
discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In her underlying complaint, complainant alleged that the agency
discriminated against her on the bases of race (Black) and reprisal
(prior EEO complaints) when she was moved out of the EEO Office and a
Labor Relations Specialist (LRS) (White) was moved into the EEO Office
by the Human Resources Office (HRO). In her request, complainant: (a)
denies that she told the Workforce Relations Supervisor (WRS) or anyone
else that she wanted the position of Affirmative Employment Program
(AEP) Manager to which she was assigned; (b) argues that in assigning
the LRS to the EEO Complaints Manager position, which was the position
complainant wanted, the agency violated its own priority placement policy
(PPP) by bypassing the priority placement stopper list and not taking
complainant's superior complaint management skills into consideration;
and (c) contends that evidence of discrimination could be found in
the fact that the LRS was given a supervisory position with adequate
support staff to carry out her duties, while complainant was not given
a supervisory position or adequate resources to discharge her duties
as AEP Manager. Complainant also contends that the agency brief in
opposition to her request was untimely filed and should not be considered.
In its brief, the agency notes that the HRO Director averred in his
investigative affidavit that complainant wanted to work in the AEP.
The agency further notes that during the time period when complainant
was assigned to the AEP Manager position, the HRO was undergoing a
consolidation of four HRO offices and eight EEO offices into a single
office. Consequently, there was a need to constantly review workload
and to staff the organization to meet new workload needs, which resulted
in frequent adjustments to the organizational structure and staffing.
It argues that complainant's contention that the HRO violated the PPP
is not supported by any facts, as the Department of Defense, which
administers the program, did not uncover any violations in its frequent
reviews of the program. Finally, the agency acknowledges that its brief
was submitted untimely, but contends there were extenuating circumstances
inasmuch as the delay occurred because the agency did not receive the
docketing statement from the EEOC's Office of Federal Operations until
March 15, 2001.
As a preliminary matter, we note that the agency did not receive the
docketing statement until March 15, 2001, and we have therefore considered
the arguments set forth in the agency's brief.
After a careful review, the Commission finds that its prior decision
properly determined that complainant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions were
a pretext for discrimination. In reaching this conclusion, we observe
that the matters challenged by complainant stemmed from the agency's
decision to consolidate the HRO and EEO offices into one, which required
organizational restructuring. We further note that it is a prerogative
of management to set policies and carry out personnel decisions, which
should not be second-guessed by a reviewing court or an administrative
tribunal absent evidence of unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Accordingly, after a review of the complainant's request for
reconsideration, the agency brief in opposition, the previous decision,
and the entire record, the Commission thus finds that the request fails
to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision
of the Commission to deny the request. The decision in EEOC Appeal
No. 01991865 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
June 21, 2001
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date