01974977
11-30-1999
Guadalupe G. Martinez, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Guadalupe G. Martinez v. Department of the Interior
01974977
November 30, 1999
Guadalupe G. Martinez, )
Complainant, )
) Appeal No. 01974977
v. ) Agency No. LLM-96-024
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of national origin (Hispanic), sex (female), and age (DOB 3/6/43),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.; and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. �621 et seq.<1> Complainant alleges
she was discriminated against when: (1) officials at the Bureau of Land
Management (BLM), New Mexico (NM), non-competitively filled the position
of Public Affairs Specialist located in the External Affairs Office of
the BLM, thereby preventing her from formally applying and competing
for that position; (2) on or about May 23, 1994, and February 5, 1996,
BLM-NM officials failed to place her in a new or vacant GS-11 position
located in the External Affairs Office of the BLM-NM after she requested
a hardship transfer: and (3) on February 16, 1996, the External Affairs
BLM-NM Officer did not select her to fill the new or vacant GS-11 position
located in the External Affairs Office of the BLM-NM. 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, complainant was
employed as a Public Affairs Specialist in the Farmington, NM District
Office. Complainant alleged that officials preselected a candidate for the
Public Affairs Specialist position located in NM. She maintained that
officials downgraded the position from a GS-12 to a GS-11 position in
order to noncompetitively fill the position. She alleged that officials
ignored her interest in the position and ignored her request for a
hardship transfer to NM. The position was filled by a male, Anglo and
under 40. Believing she was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint on April 25,
1996. At the conclusion of the investigation, complainant requested that
the agency issue a FAD.
The FAD concluded that complainant established prima facie cases of
national origin, sex and age discrimination when she demonstrated that
similarly situated employees not in her protected classes were treated
differently than she was under similar circumstances. However, the FAD
held that the agency had provided legitimate, nondiscriminatory reasons
for its actions. With respect to claims nos. 1 and 3, the FAD indicated
that in January 1996, complainant expressed interest in the vacant Public
Affairs Specialist GS-12 position in the Office of External Affairs in
Santa Fe, NM. The FAD indicated that complainant's supervisor contacted
the Chief of External Affairs regarding her interest in the position.
Complainant was offered a detail in the position but declined. The
FAD identified the Selectee as a lateral transfer from the Phoenix
Office of External Affairs. The FAD found that an informal procedure
was used to fill the position as a cost saving measure, and since the
action was voluntary reassignment from Phoenix to Santa Fe, there was
no requirement to consider other applicants other than the person being
reassigned. Further, the FAD found that the position had been vacated
by a highly skilled specialist, and it was felt that a highly skilled
specialist was needed to fill the vacancy. The Chief of External Affairs
indicated that she had had concerns about complainant's writing and
analytical skills based on complainant's prior performance when she
had filled in for a short period, whereas the Selectee was given rave
reviews regarding his writing and analytical ability.
With respect to claim no. 2, the FAD concluded that complainant
failed to establish a prima facie case of sex, national origin and age
discrimination as it relates to her request for a hardship transfer. The
FAD indicated that complainant failed to demonstrate that other employees
not of her protected groups received more favorable treatment with regard
to hardship transfers. The FAD found that no one was allowed hardship
transfers during April and May of 1994. Moreover, the record indicates
that there was a policy in the office that all transfer requests based
on ailing parents would be denied because granting such requests would
ultimately become a tremendous expense. On appeal, complainant contends
that the agency failed to consider a number of her arguments, namely
that she was not fully considered for the position and that her sex,
age and national origin were involved. The agency requests that we
affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
the Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions in
claims (1) and (3) were a pretext for discrimination. In reaching this
conclusion, we note that the record lacks any evidence that sex, national
origin or age were factors with regard to selection of the position.
Further, we agree that reassignment is a management tool available for
use in filling a position. Moreover, we find that complainant's claims
regarding the Chief of External Affairs motives for wanting a younger
male for the position are not substantiated by the evidence. We also
agree with the FAD and find that complainant failed to establish a prima
facie case of sex, national origin and age discrimination regarding
claim (2) as she failed to demonstrate that other employees were
treated differently. 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 (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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:
November 30, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.