01984661
04-24-2000
Mabel Penn, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, (Bureau of Indian Affairs) Agency.
Mabel Penn v. Department of the Interior
01984661
April 24, 2000
Mabel Penn, )
Complainant, )
)
v. ) Appeal No. 01984661
) Agency No. BIA95053
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
(Bureau of Indian Affairs) )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that the agency properly dismissed
Claims 1-4 pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for untimely EEO contact.<1> In addition, the
Commission finds that the agency properly decided that the agency did
not discriminate against complainant in Claims 5-7.
The complainant alleged that she was discriminated against on the basis
of reprisal when:
she was hired as a Home Living Specialist but was detailed to an
Academic Supervisor position from August through September 1993;
she was hired as a Home Living Specialist but was detailed to a Guidance
Counselor position for the remainder of the 1993-1994 school year;
she was hired as a Home Living Specialist but was detailed the entire
1993-1994 school year and was rated on Home Living Specialist duties
rather than Academic Supervisor and Guidance Counselor duties;
her position as Home Living Specialist was abolished during a reduction
in force in October 1994;
she was assigned to establish an Intensive Residential Guidance (IRG)
Program but was not given any guidelines, job descriptions, training,
or information on how to establish the program;
she was not selected for a Guidance Counselor position on February 2,
1995; and
she was not selected for an Elementary Teacher position in February
1995.
According to the record, the alleged discriminatory events in Claims 1-4
occurred between August 1993 and October 1994. However, complainant did
not initiate contact with an EEO Counselor until March 15, 1998, which
is well beyond the forty-five (45) day limitation period. On appeal,
complainant has not made any arguments or presented any evidence to
warrant an extension of the time limit for initiating EEO contact.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain claims within a complaint when
the complainant alleged a continuing violation. A continuing violation
is a series of related discriminatory acts, one of which fell within the
time period for contacting an EEO Counselor. See Reid v. Department of
Commerce, EEOC Request No. 05970705 (April 22, 1999).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. It is necessary to determine whether the acts are
interrelated by a common nexus or theme. See Vissing v. Nuclear
Regulatory Commission, EEOC Request No. 05890308 (June 13, 1989).
Should such a nexus exist, complainant will have established a
continuing violation and the agency would be obligated to overlook the
untimeliness of the complaint with respect to some of the acts challenged
by complainant.
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a
continuing violation is stated, to consider whether an complainant
had prior knowledge or suspicion of discrimination and the effect of
this knowledge. Jackson v. Department of the Air Force, EEOC Request
No. 05950780 (June 27, 1997).
In this case, Claims 1-4 are isolated employment decisions and are
not interrelated to Claims 5-7. Since complainant did not establish
a continuing violation and did not contact the EEO contact within the
applicable time frames, Claims 1-4 must be dismissed. Accordingly,
the agency's decision dismissing Claims 1-4 is AFFIRMED.
Also, the Commission finds that the agency properly determined that it
did not discriminate against complainant. To determine discrimination
in the absence of direct evidence, a claim must be examined under the
three-part analysis originally enunciated in McDonnell Douglas Corporation
v. Green. 411 U.S. 792 (1973). For complainant to prevail, she must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its action.
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
In order to establish a prima facie case of reprisal discrimination,
complainant must show that (1) she engaged in prior protected activity;
(2) the acting agency official was aware of the protected activity;
(3) she was subsequently disadvantaged by an adverse action; and, (4)
there is a causal link. The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996).
While the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination.
In this case, the Commission finds that the complainant has not
established a prima facie case of reprisal discrimination. Complainant
had not participated in prior EEO activity and did not allege that
the agency retaliated against her during the current EEO complaint.
Also, the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions.
First the agency stated that complainant was assigned to develop and
implement the IRGP. Since the program was new, the agency did not have
any specific job descriptions or guidelines. Complainant had resource
personnel from other schools that developed the IRG program and an agency
contact person who was responsible for overseeing other IRG programs for
the agency. Secondly, the agency stated that complainant was not selected
for the Guidance Counselor or Elementary Teacher position because more
qualified candidates were selected. Specifically, the agency stated
that the selectee for Guidance Counselor had more creative ideas, and
the selectee for Elementary Teacher had more experience. As a result,
complainant was not selected.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. We find that
complainant has failed to meet this burden. Complainant has not shown
that reprisal was the true motive behind her special assignment to the
IRG program or her non-selection for the two positions. Accordingly,
the agency's decision dismissing Claims 5-7 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 24, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
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.