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.