Loisv.Lema, Complainant, v. Bruce Babbitt, Secretary, Department of Interior, Agency.

Equal Employment Opportunity CommissionMar 23, 2000
01976141 (E.E.O.C. Mar. 23, 2000)

01976141

03-23-2000

Lois V. Lema, Complainant, v. Bruce Babbitt, Secretary, Department of Interior, Agency.


Lois V. Lema v. Department of Interior

01976141

March 23, 2000

Lois V. Lema, )

Complainant, )

) Appeal No. 01976141

v. ) Agency No. 96013

)

Bruce Babbitt, )

Secretary, )

Department of Interior, )

Agency. )

)

DECISION

Complainant filed a timely appeal from a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases reprisal (prior EEO activity),and physical disability (severe

asthma), in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq., and the Rehabilitation Act of

1973, as amended, 29 U.S.C. � 791, et seq.<1> The appeal is accepted

in accordance with EEOC Order No. 960.001. For the following reasons,

the Commission AFFIRMS the FAD.

The record reveals that during the relevant time, complainant was employed

as a Park Ranger with the agency's National Park Service at the Statute

of Liberty Monument, Ellis Island, New York. Complainant claims that

she was retaliated against regarding her 1991 EEO complaint against

the agency, and discriminated against because of her disability,<2>

as evidenced by the following incidents:

1. Agency officials delayed the processing of her March 1995 leave

audit request;

2. In September 1995, her Park Ranger position was abolished, and she

was assigned to another type of Park Ranger position which had less

desirable duties;

3. Agency officials delayed processing her April 1995 request for Sunday

differential pay;

4. A personnel officer laughed at her when informed of her recently

diagnosed dyslexia;

5. Agency officials failed to adequately investigate an incident when

she was sprayed with mace, resulting in a serious asthma attack; and,

6. The Superintendent's secretary informed her that the Superintendent

threatened to hurt her unless she dropped her grievances.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint. At the conclusion of

the investigation, the agency issued its FAD, finding no discrimination.

Complainant did not submit a statement in support of her appeal.

The agency has submitted a brief in support of its determination

that complainant failed to establish a prima facie case of reprisal

or disability discrimination with regard to any of the enumerated

incidents.<3>

Based on standards set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), Prewitt v. United States Postal Service, 662 F.2d 292

(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the

Commission agrees with the agency that complainant failed to establish

a prima facie case of reprisal or disability discrimination.<4> In

reaching this conclusion, we note that complainant's EEO activity took

place approximately four years prior to the incidents identified in

the instant claim. Given the length of this interval, coupled with

complainant's failure to produce any evidence to suggest a nexus between

these events, we find that they are too remote in time, and otherwise

unrelated, such that a retaliatory motive cannot be inferred as required

to establish a prima facie case of reprisal. See Hochstadt, supra.,

and Webb v. NASA, EEOC Appeal No. 01970880 (May 13, 1999).

Furthermore, we find that the complainant has failed to establish a prima

facie case of disability discrimination (i.e., disparate treatment based

on her disability), because she provides no evidence that non-disabled

individuals were treated more favorably under similar circumstances, or

that the enumerated incidents were motivated by discriminatory animus,

or that they were in any way related to her disability.<5> See Bridges

v. U.S. Postal Service, EEOC Appeal No. 01891679 (January 24, 1990).

Although complainant asserts that she was subjected to disability

discrimination, she provides no credible evidence to support these

assertions, and we find nothing in the record from which to infer

discriminatory animus toward complainant's disability.

Instead, the record shows that the delays described incident 1 and

incident 3 were the result of unfamiliar and complicated accounting

procedures and confusion about the role of the Denver Payroll office in

responding to these requests. Moreover, regarding incident 2, the record

shows that complainant's position was abolished because of budgetary

concerns, and that she received a higher salary in her new position.

Regarding incident 4, the record shows that the responsible personnel

officer acknowledged and regretted her behavior, indicating that she

originally thought that complainant was joking about being dyslexic,

and apologized when she realized that she was serious. As to incident

5, we find that complainant offers nothing more than mere speculation

regarding the mace attack. We also find that the agency did undertake

an investigation, which was necessarily inconclusive because there

were no witnesses, complainant did not see the "attacker," and offered

only conjecture that it was a "mace attack." Regarding incident 6, the

Superintendent's secretary testified that she did not "warn" complainant

that the Superintendent made statements against her, but rather stated

her own opinion about management's response to employee grievances.

Neither the secretary, nor any of the other pertinent witnesses, testified

that they had ever heard the Superintendent make remarks of this nature

against complainant.

Therefore, after a careful review of the record, 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 23, 2000

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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

__________________________

Equal Employment Assistant

1On 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.

2Complainant also contends that she is disabled by dyslexia and

hypoglycemia.

3Both the FAD and agency brief go beyond the prima facie case

analysis, and alternatively find that the agency produced legitimate

nondiscriminatory reasons for its actions, and that complainant was unable

to prove that these reasons were a pretext for disability discrimination.

See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

However, because we concur with the agency's prima facie determination,

we will not address its alternative treatment of this claim herein.

4The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.

5In its FAD, the agency acknowledges that complainant is an "individual

with a disability" and entitled to the protection of the Rehabilitation

Act. Given this determination, we will not address this issue herein.