01985254
07-31-2001
Lisandra C. Ortiz, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Lisandra C. Ortiz v. Department of the Army
01985254
July 31, 2001
.
Lisandra C. Ortiz,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01985254
Agency No. AOEVF09704H0020
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. Complainant alleged that she
was discriminated against on the bases of her sex, race (Hispanic),
and national origin (Puerto Rico) when she was denied training in
February 1997.<1>
The record reveals that during the relevant time, complainant was employed
as a Management Assistant at the agency's Fort Richardson, Alaska,
facility. Believing she was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
May 6, 1997. See n. 1, supra. 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. Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant was not subjected to
discrimination. The FAD found that complainant did not establish a prima
facie case of discrimination on any of her claimed bases with respect
to management's failure to approve her request to attend the course
�Planning and Conducting Management Studies� to be held in Arlington, VA.
Specifically, the agency stated that complainant did not show that she
was treated differently than similarly situated co-workers, not of her
protected classes.
On appeal, complainant argues that the conclusion reached in the FAD
was improper because not enough weight was given to the conclusions
reached by the agency investigator. The investigator found that
complainant's statements and those of three other witnesses indicated
that she had been mistreated and harassed because of her race and
national origin. In contrast, the agency found that management was
�not personally impressed with complainant as an employee� but did not
bear an animus against her based on her sex, race or national origin.
The agency found that complainant's request for the training course
was not approved because other analysts required training before her,
that course had never been used before, the training location was some
4,000 miles away and the cost of the course, particularly in light of
the organization's typical funding of one on-site developmental training
course each summer. On appeal, the agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the Commission finds 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 have carefully reviewed the Report of Investigation.
We are not persuaded that complainant established that the articulated
reasons offered by complainant's new, incoming supervisor and the existing
managers were a pretext to mask discrimination. 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 (M0701)
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
July 31, 2001
__________________
Date
1 Complainant, in her original complaint, raised several other claims
dating back to December of 1994. The record reflects that on May 14,
1997, the agency issued a FAD dismissing those claims on the basis that
they were not timely raised. In her instant appeal, complainant argues
that the other claims were in fact timely raised. However, under the
Commission's regulations in effect at that time, the agency was permitted
to dismiss portions of a complaint and complainant was obligated to
appeal the dismissal within 30 days of receipt of the May 1997 FAD.
A review of the Commission's records establishes that complainant did not
do so. This decision, therefore, addresses only the denial of training
in February of 1997.