M. Elaine Rand, Appellant,v.Richard W. Riley, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01975845 (E.E.O.C. Nov. 5, 1999)

01975845

11-05-1999

M. Elaine Rand, Appellant, v. Richard W. Riley, Secretary, Department of Education, Agency.


M. Elaine Rand, )

Appellant, )

) Appeal No. 01975845

v. ) Agency No. ED-9524000

)

Richard W. Riley, )

Secretary, )

Department of Education, )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning her Equal Employment Opportunity (EEO) 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 of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. Appellant alleges that she was discriminated against on

the bases of race (White) and age (51) when: (1) her responsibility

for overseeing the Career Counseling contract was taken away; and (2)

she was denied a promotion to a GS-13 level position. The appeal is

accepted in accordance with EEOC Order No. 960.001. For the following

reasons, we affirm the FAD.

The record reveals that during the relevant time, appellant worked as a

GS-12 Employee Development Specialist at the Training and Development

Center (TDC) in the agency's Office of Management in Washington, DC.

Believing the agency discriminated against her, appellant sought EEO

counseling and subsequently filed a formal complaint on January 6, 1995.

The agency accepted the complaint for processing and, at the conclusion

of the investigation, granted appellant thirty days to request a hearing

before an EEOC Administrative Judge. When appellant failed to respond,

the agency, in accordance with 29 C.F.R. � 1614.110, issued a final

decision finding no discrimination. Appellant raises no new arguments

on appeal. The agency requests that we affirm the FAD.

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

U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),

the Commission agrees with the agency's finding of no discrimination.

In reaching this conclusion concerning her first allegation, we find that

appellant established prima facie cases of race and age discrimination

since similarly situated employees outside of her protected classes did

not have their job responsibilities taken away. The agency, however,

articulated a legitimate, nondiscriminatory reason for removing appellant

from her role as Project Manager on the Career Counseling contract.

The Acting Director of the TDC stated that she removed appellant in

order to establish harmony in the workplace after she realized that

disagreements between appellant and a colleague working on the contract

resulted in a very unpleasant working environment. Appellant contends that

the real reason she was removed from the contract was because the Acting

Director favored younger, Black employees like the colleague who was

not removed from the contract. Appellant, however, presents no credible

evidence to support her contention. We agree with the agency that the

Acting Director was attempting, in her temporary capacity, to resolve

sensitive personnel issues which affected the efficiency of her office.

Moreover, upon review of the record, we find that appellant displayed an

acrimonious and condescending attitude toward her co-workers and refused

to be a team player.

Concerning appellant's second allegation, we find that the agency

correctly determined that appellant failed to establish a prima facie

case of discrimination when she failed to prove that similarly situated

employees were promoted during the tenure of the TDC's Acting Director.

We also note that there were no promotion opportunities readily available

in the TDC during the Acting Director's four month tenure and that even

if such opportunities had been available, the Acting Director stated

that she was not in the position long enough to determine whether a

promotion would have been appropriate.

Therefore, after a careful review of the record, including appellant'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 (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 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 5, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations