01973751
09-16-1999
Keith A. Francis, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Keith A. Francis v. Department of the Interior
01973751
September 16, 1999
Keith A. Francis, )
Appellant, )
) Appeal No. 01973751
v. ) Agency Nos. LLM-94-059
) LLM-94-078
Bruce Babbitt, ) LLM-94-079R
Secretary, )
Department of the Interior, )
Agency. )
)
_______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision
of the Department of the Interior (agency) concerning his complaint of
unlawful employment discrimination, 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 (ADEA) of 1967, as amended,
29 U.S.C. � 621, et seq. The appeal is accepted in accordance with
EEOC Order No. 960.001.
ISSUES
In Complaint No. 059 (Complaint No. 1) appellant alleges discrimination
based upon his age (46) and reprisal (EEO counselor) when, in January,
1994, he was non-selected for the position of Supervisory Cartographer,
GS-1370-12.
In Complaint No. 078 (Complaint No. 2) appellant alleges discrimination
based upon his age (46), sex (male), and reprisal (EEO counselor) when:
a. in October, 1993, appellant was not selected/promoted to the
position of EEO Manager, GS-12, advertised in Vacancy Announcement
Number SC-93-28;<1>
b. in December, 1993, appellant was denied the opportunity to serve
on a work team;
c. on January 31, 1994, appellant was notified that his application to
participate in the Women's Executive Leadership Program (WELP) was not
forwarded by the Service Center Personnel Office to the rating panel
for consideration;
d. on April 22, 1994, the Service Center Director (SCD) requested
that the Office of Personnel Management (OPM) reopen and reconsider
its decision to upgrade appellant's position from GS-11 to GS-12; and
e. on May 10, 1994, appellant resigned his collateral EEO counselor
position because of reprisal actions taken against him by management
officials.
Appellant also alleges<2> discrimination based upon reprisal (EEO
counselor) when:
a. in April, 1993, Personnel management headed by the Personnel Chief
(PC) denied one pay period of temporary promotion pay which was timely
supported by his supervisor;
b. in April, 1994, Personnel management headed by PC denied appellant
access to personnel files in the performance of his EEO counseling
duties;
c. in or about winter/spring of 1994, the former EEO Manager interfered
with the resolution of appellant's EEO case;
d. in or about winter/spring of 1994, the former EEO Manager failed
to assign appellant an EEO Counselor within the 45-day time frame;
e. in or about winter/spring of 1994, appellant's EEO Counselor failed
to conduct an objective and complete inquiry and tried to talk appellant
out of filing a complaint; and
f. in or about winter/spring of 1994, the former EEO Manager breached
appellant's confidentiality and denied him the right to remain anonymous
on Complaint No. 2.<3>
On May 5, 1994 and July 5, 1994 appellant filed formal Complaint 1 and
2, respectively. Following an investigation, appellant requested a
hearing before an EEOC Administrative Judge (AJ), but later rescinded
his request. On February 21, 1997, the agency issued a Final Agency
Decision (FAD) finding no discrimination. It is this agency decision
which the appellant now appeals.
During all relevant times, appellant worked as a Cartographer, GS-11, in
the Branch of Mapping Sciences, Bureau of Land Management (BLM or Service
Center) in Colorado. From approximately 1987 to May, 1994, appellant
also assumed collateral duties of an EEO Counselor. The Service Center
is headed by S1 (age 49, male, prior EEO Counselor)<4> and is comprised
of three sections; Cartography, Photogrammetry, and Remote Sensing.
Appellant alleges that starting in 1992, while performing his EEO
Counseling duties, various EEO cases arose whereby appellant disagreed
with personnel and management officials with respect to the merits
of the informal EEO complaints. Appellant contends that because of
his outspoken and contrary position regarding the merits of these EEO
informal complaints, personnel and management officials soon began to
engage in acts of reprisal. Appellant further alleges that in late
1993, he realized that his only recourse was to file an EEO Complaint.
Appellant alleges that he sought EEO Counseling in late January, 1994.
Appellant further alleges that after making initial contact with the EEO
office, the new EEO Chief, engaged in reprisal by processing appellant's
informal and formal complaints in a biased and unprofessional manner
which denied appellant due process.
For the reasons set forth below, the Commission AFFIRMS the FAD.
PROCEDURAL DISMISSALS BY THE AGENCY
Untimely Allegations Involving the October, 1993 Non-Selection and April,
1993 Denial of Pay
The agency determined that these two untimely allegations failed to
present a continuing violation. Specifically, the agency found that these
allegations were not related to those allegations which were timely filed.
The agency noted that the timely allegations involved the Service Center
Director (SCD), while the 1993 non-selection was processed by a Service
Center Personnel Staffing Specialist and the denial of pay involved the
Personnel Management Office.
A continuing violation has been defined as a series of related acts,
one or more of which falls within the limitations period, or the
maintenance over time of a discriminatory policy or system. Martinez
v. Department of Defense, EEOC Request No. 05950499 (August 1, 1996).
In determining whether a series of discrete occurrences constitute a
continuing violation, the Commission will look at such factors as whether
the acts involve the same type of discrimination, the frequency of the
acts, and whether the acts have a degree of permanence sufficient to
trigger an individual's awareness of his duty to assert his rights, i.e.,
a reasonable suspicion of discrimination. Guba v. Army, EEOC Request
No. 05970635 (February 11, 1999). Once appellant has a reasonable
suspicion of discrimination, the complainant may not wait until all
supporting facts become apparent before contacting a counselor. Id.,
citing Peets v. United States Postal Service, EEOC Request No. 05950725
(March 28, 1996). Applying these standards to the present case, we
find that appellant had a reasonable suspicion of discrimination, at
the latest, in October, 1993.
Appellant states that he was warned of reprisal as early as 1992 and
continued to be warned by many colleagues and friends over the years.
Appellant specifically states that several people warned him about
reprisals in October, 1993, the same month he was non-selected for the
EEO Manager position. In addition, on appeal, appellant explains that he
did "not feel that he had enough evidence and proof of discrimination,
[with respect to both allegations,] to reasonably file a complaint" at
that time. Appellant further states that he intentionally delayed the
filing of a complaint on these two allegations until "a further pattern
of continuing violations developed." In addition to the foregoing,
we find that since appellant was an EEO counselor, he should have been
fully aware of his filing requirements. Accordingly, we agree with the
agency's determination that appellant failed to establish a continuing
violation, and find these allegations untimely filed.
Failure to Receive Files from Personnel in Accordance with Appellant's
EEO Counseling Duties
The agency determined that this allegation was moot because appellant
eventually received the files requested. We agree with the agency.
See County of Los Angeles v. Davis, 440 U.S. 625 (1979). In addition,
even assuming this allegation was improperly dismissed as moot, the record
as a whole fails to support discriminatory animus. The clear weight of
the evidence supports the finding that while the Personnel officials
were not particularly helpful to appellant, they were attempting to
protect the agency's files through legitimate channels.
Failure to Receive a Fair and Objective Inquiry at the Informal Counseling
Stage
The agency dismissed this allegation on the bases of failing to state
a claim and mootness. Specifically, the agency found that appellant
failed to show how he was harmed since he filed a formal EEO complaint.
In addition, the agency found that the EEO counselor did conduct
an objective and complete inquiry since the record shows that the
Counselor interviewed three witnesses determined to be most involved
and knowledgeable about the complaint. The record also indicates that
appellant's documents (approximately 100 pages) were made part of the
official complaint file.
We agree with the agency and note that the Commission has held that
allegations which relate to the processing of a previously filed complaint
do not state independent allegations of employment discrimination. See
Kleinman v. U.S. Postal Service, EEOC Request No. 05940579 (September 22,
1994); Story v. U.S. Postal Service, EEOC Appeal No. 01965883 (March 13,
1997). In addition, if a complainant is dissatisfied with the processing
of his pending complaint, he should be referred to the agency official
responsible for the quality of complaints processing. Agency officials
should earnestly attempt to resolve dissatisfaction with the complaints
process as early and expeditiously as possible. See EEO MD 110 (4-8).
AGENCY'S FINDING OF NO DISCRIMINATION ON REMAINING ALLEGATIONS
January, 1994 Non-Selection
The agency found that appellant established a prima facie case of age
discrimination and reprisal with respect to the 1994 non-selection.
Specifically, the agency found that the record supported the finding
that: (1) appellant was a member of both protected classes (age 46 and
EEO Counselor); (2) appellant applied and was found qualified for the
position; (3) the selectee fell outside appellant's protected classes
(38 years old and no prior EEO activity); (4) management was aware of
appellant's prior duty as an EEO Counselor; and (5) appellant was still
serving as an EEO Counselor when he applied and was non-selected for
the position.
The agency found management's articulated explanation for its
non-selection legitimate and non-discriminatory. Specifically,
appellant's supervisor (S1) (49, prior EEO counselor), stated that he
chose the selectee for the temporary supervisory position because he
demonstrated superior leadership and managerial skills. S1 stated that
all three candidates were interviewed using the same questions. S1 stated
that, in his judgement, the selectee's forte in the area of customer
service and promoting high morale, and galvanizing the staff to work
together as a cohesive team for high unit productivity, outweighed the
strengths appellant would have brought to the one-year temporary position.
S1 further stated that while appellant's forte (automation skills) were
important, he felt as though more than one-year would have been needed to
fully implement his ideas in the automation area and the need for quality
customer service, morale and leadership were more important at that time.
Appellant argues that his experience, skills, and education are far
superior to the selectee's. He also claims that he had more supervisory
experience.
The agency found that appellant failed to prove pretext or that the
non-selection was based upon discriminatory animus. Accordingly, the
agency determined that appellant failed to prove age discrimination or
reprisal.
Request by SCD to Reopen OPM's Decision to Upgrade Appellant's Position
The undisputed record indicates that in November, 1991, appellant's
first and second-line supervisors decided to change his and a co-worker's
position description (PD). The PD was changed in an attempt to upgrade
the position classification from a GS-11 to a GS-12. The PDs were
finalized and submitted to Service Center Personnel for a desk audit.
The first desk audit appeared to be inadequate to management and,
accordingly, a second desk audit was conducted. The final result of the
desk audit was that the position was correctly classified as a GS-11.
Appellant claims that the desk audit was not objective and the Service
Center Personnel Office had no intentions to fairly and accurately
classify the PDs. Appellant ultimately appealed this decision to
the Office of Personnel Management (OPM). Ultimately, OPM issued a
decision ordering appellant's position upgraded to a GS-12. However,
appellant claims that in an attempt to retaliate against him, Service
Center Personnel officials convinced SCD to challenge OPM's decision.
In approximately, late 1994, OPM eventually reversed its decision and
denied appellant his upgrade.
The agency found that appellant failed to support a prima facie case of
sex or age discrimination since the record contained no evidence showing
that he was treated differently from similarly situated individuals
outside appellant's protected classes (46, male). However, the agency
did find that appellant established a prima facie case of reprisal.
Accordingly, the agency considered management's articulated response and
found it legitimate and non-discriminatory. Specifically, management
explained that the work which OPM cited to justify its decision in
awarding appellant an upgrade was not applicable, nor ever done at the
BLM by any cartographer, including appellant. Accordingly, SCD explained
to OPM what work was actually performed by appellant and stated that he
did not think the GS-12 was warranted. SCD testified that if he accepted
the decision from OPM without clarification, it could become applicable
to other cartographers which would cause a necessary readjustment in
the work of many positions.
According to the agency, appellant failed to provide any credible evidence
of pretext or discriminatory animus. Therefore, the agency found that
appellant failed to prove discrimination.
Denial of Opportunity to Serve on a Work Team
The agency found that appellant failed to establish a prima facie case
of discrimination based upon sex, age and reprisal with respect to
this allegation. Specifically, with respect to age and sex, the agency
found that five males and eight women were placed on the work team. With
respect to age, the agency noted that nine persons were within appellant's
protected age group and five persons were outside appellant's protected
age group. In addition, the agency determined that a prima facie case of
reprisal was not present since the record did not support a sufficient
nexus between appellant's prior EEO activity and the non-selection of
appellant to serve on the work team, since the non-selection took place in
December, 1993, one month prior to appellant's initial EEO involvement.
The agency conceded that the responsible management officials could
not provide any reason for appellant not being included on a work team.
However, since it found that appellant failed to establish a prima facie
case of discrimination, the agency was not obligated to articulate a
legitimate, non-discriminatory explanation in this particular instance.
Lastly, the agency noted that a strictly voluntary committee fails to
rise to the level of a "term, condition, or benefit of employment,"
and accordingly, the appellant failed to state a claim on this issue.
Application to Participate in the Women's Executive Leadership Program
was Not Forwarded by the Service Center Personnel Officer to the Rating
Panel for Consideration
The agency found that appellant established a prima facie case of
discrimination based upon sex, age and reprisal with respect to this
allegation. However, the agency found that the responsible management
official articulated a legitimate, non-discriminatory explanation for
failing to forward appellant's application to the rating panel for further
consideration. Specifically, it was explained that appellant failed
to submit a complete application package prior to the closing date.
The record shows that all other applications submitted were properly
completed and submitted on time. It is undisputed that appellant failed
to include the required Knowledge, Skills, and Abilities description
and current performance appraisal with his application package.
The agency also found that while appellant argued the agency had a policy
of allowing applicants to complete their application package after the
closing date so long as they submitted a portion of the application
on time, appellant failed to present any credible evidence to support
his contention. Moreover, the record indicates that as long as the
responsible management official has been forwarding application packages,
no incomplete package had ever been forwarded to the rating panel.
In addition to failing to present evidence of pretext, the agency found
that appellant failed to present any credible evidence of discriminatory
animus. Accordingly, the agency found that appellant failed to establish
discrimination based upon sex, age or reprisal.
Appellant Resigned his Collateral Duties as an EEO Counselor
The agency found that appellant failed to present a prima facie case of
discrimination based upon reprisal since appellant failed to allege that
he was forced to resign his duties, but rather stated that he voluntarily
resigned because of the alleged reprisal actions. In addition, the agency
determined that appellant's vague description of reprisal actions failed
to support his claim. For example, appellant claimed that he resigned
because of reprisal actions which included: (1) the failure by management
and personnel to cooperate with him in providing personnel documents to do
his job as an EEO Counselor; and (2) the EEO Manager's interference with
the performance of appellant's duties as EEO Counselor by taking away
the resolution process from all EEO Counselors. The agency essentially
found that the record evidence did not support a finding of constructive
discharge with respect to appellant's EEO Counseling duties. Accordingly,
the agency determined that appellant failed to prove reprisal.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the agency, in all material respects, except as provided below,
accurately set forth the relevant facts and properly analyzed the case
using the appropriate regulations, policies, and laws.
With respect to the work team issue, we disagree with the agency's
analysis. We find that the record indicates that appellant never intended
to raise this as an allegation, but rather considered it facts in support
of his reprisal allegation. The appellant testified as follows:
Q: And then as far as this issue, what would it take to resolve this
particular issue? Or do you feel that this particular issue may be
moot at this time?
A: I think it's moot at this time. Again, I think it's just supportive
of the reprisal issues. And my ultimate resolution is to receive the
upgrade that I was awarded. And this demonstrates the failure of the
Washington EEO Office to recognize the real complaints and issues in
this case. That's why I disagree with these issues. This is really a
supportive issue demonstrating the reprisal. It's not something that
can be resolved.
(Appellant's Testimony pg. 53.)
Even assuming appellant intended this issue to remain as an allegation,
we, nevertheless, find it moot. Accordingly, the merits of the claim
are not dispositive. EEOC Regulation 29 C.F.R. �1614.107(e) allows the
dismissal of a complaint or allegations therein when the issues raised
are moot. The issues raised in appellant's complaint can be considered
moot if: (1) it can be said with assurance that there is no reasonable
expectation that the alleged violation will recur; and (2) the interim
relief or events have completely and irrevocably eradicated the effects of
the alleged violation. See County of Los Angeles v. Davis, 440 U.S. 625
(1979); See also Heginbothan v. Department of Defense, EEOC Appeal
No. 01955132 (March 7, 1996)(holding that appellant's retirement makes
it impossible to redress the denial of opportunity of which appellant
complains).
The undisputed record indicates that in response to a national performance
review of all the federal agencies, the agency started volunteer work
teams to address issues such as employee environment and work relations.
Appellant volunteered for one of the teams that was headed up by PC.
The undisputed record further indicates that this work team was short
lived and is no longer operating. As appellant similarly noted, we find
that the cancellation of the work team makes it impossible to redress
this allegation.<5> (See Appellant's Testimony pgs. 52-53.) Moreover,
we find that there is no reasonable expectation that the alleged violation
will recur.
Furthermore, we have considered appellant's assertion that this allegation
is supportive of his other reprisal claims. However, after considering
the work team allegation in conjunction with all allegations herein, we
remain unpersuaded that the agency's actions were motivated by reprisal
or discriminatory animus.
While the agency failed to directly address three spin-off allegations,
we find that for the reasons set forth herein above, the following
allegations were properly dismissed: (1) in or about winter/spring of
1994, the former EEO Manager interfered with the resolution of appellant's
EEO case; (2) in or about winter/spring of 1994, the former EEO Manager
failed to assign appellant an EEO Counselor within the 45-day time frame;
and (3) in or about winter/spring of 1994, the former EEO Manager breached
appellant's confidentiality and denied him the right to remain anonymous
on Complaint No. 2. See Kleinman v. U.S. Postal Service, EEOC Request
No. 05940579 (September 22, 1994); Story v. U.S. Postal Service, EEOC
Appeal No. 01965883 (March 13, 1997).
Appellant spends a considerable time in his appeal re-stating arguments
made previously or criticizing the agency's interpretation of the facts.
The Commission has exhaustively reviewed the entire case file, including
appellant's arguments on appeal. Viewing the record as a whole, we
find no credible evidence of discriminatory animus, but rather supported
accusations from appellant. Accordingly, we hereby AFFIRM the agency's
finding of no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
9/16/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
1This allegation was initially dismissed by the agency for untimeliness.
However, on appeal, the Commission remanded the allegation to the
agency and ordered it to address the possibility of a continuing
violation and to clarify the issues alleged. See Francis v. Interior,
EEOC Appeal No. 01950568 (July 13, 1995).
2In response to the Commission's remand, these additional allegations
were accepted by the agency and given a separate docket number (079R)
(hereinafter "Complaint No. 3").
3In addition to reprisal as a basis for this allegation, appellant also
claims sex discrimination.
4All age references pertain to the time of the Complaint.
5We note that appellant states in the record that he is not seeking
compensatory damages, but rather that his position be upgraded.