Mabel Penn, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, (Bureau of Indian Affairs) Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01984661 (E.E.O.C. Jul. 20, 2000)

01984661

07-20-2000

Mabel Penn, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, (Bureau of Indian Affairs) Agency.


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 31, 1995, 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).

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 were properly dismissed. Accordingly,

the agency's decision dismissing Claims 1-4 is AFFIRMED.

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.

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 she has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination.

The Commission finds that the agency offered legitimate, nondiscriminatory

reasons for its actions. First the agency stated that complainant was

assigned to develop and implement the IRG program. Since the program was

new, the agency did not have any specific job descriptions or guidelines

to offer complainant. However, 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 the Guidance Counselor position had more creative ideas.

The selectee was recommended by a committee composed of one parent,

one school board member, the supervisor from the department wherein

the vacancy existed, as well as one employee from that department.

The committee recommended the selectee based on her expression of new,

creative, and more contemporary ideas for the children; whereas, the

other applicants, including complainant, just mentioned the same things

that had been used for years. With regard to the Elementary Teacher

position, the committee recommended the selectee because she was the

most experienced applicant.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory incidents, 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 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 finding of no discrimination regarding 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:

July 20, 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.