Margaret E. Watson, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01970046 (E.E.O.C. Jan. 24, 2000)

01970046

01-24-2000

Margaret E. Watson, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Margaret E. Watson v. Department of the Interior

01970046

January 24, 2000

Margaret E. Watson, )

Complainant, )

) Appeal No. 01970046

v. ) Agency No. WG595016

) WGS95019

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision

concerning her complaint of unlawful employment discrimination on the

basis of reprisal (prior EEO activity) in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the final agency decision is AFFIRMED.

ISSUE PRESENTED

The issue presented herein is whether complainant has established that

she was discriminated against on the above-referenced basis when: (1)

on December 30, 1994, she was charged eight hours of AWOL, instead of

being granted eight hours of sick leave under the Family Friendly Leave

Act, to attend her uncle's funeral; and (2) on February 21, 1995, she

was removed from her position in the Reference Department and placed in

the Technical Services Department, an area in which she had no expertise,

as Team Coordinator.

FACTUAL BACKGROUND

Complainant, employed by the agency as a Technical Services Librarian,

stated that she was the victim of retaliation when she was denied eight

hours of conditionally approved Federal Family and Medical Leave to

attend her uncle's funeral and placed on AWOL status by the Supervisory

Librarian (SL) and the Assistant Branch Librarian (ABL), the two alleged

discriminating officials in this case.<2> Her request for leave for

December 28, 1994 was approved by the ABL on December 27, 1994 with

the condition that adequate documentation be provided no later than one

workday following her return to duty, i.e., at the close of the business

day on December 29, 1994 or the start of the business day on December

30, 1994. Complainant maintained that in order to meet the "adequate

documentation" requirement, she provided the ABL with a copy of the

funeral program by 2:00 p.m. on December 30, 1994. According to her,

notwithstanding the fact that she had provided adequate documentation,

she was informed by the SL, via an electronic message received at

approximately 2:08 p.m., that she (complainant) had not complied with

the prevailing rules regarding leave and, therefore, would be marked

AWOL for the December 28 absence.

The SL, the official responsible for marking complainant AWOL, stated that

complainant's AWOL status had nothing do with previous EEO activity.

Instead, she stated, it had to do with the fact that, while the

documentation was proper, it was not adequate because she (complainant)

failed to submit it within the allotted time period. Upon being informed,

by the Employee Relations Office, that the allotted time period, i.e.,

no later than one workday following return to duty, could be interpreted

more than one way, the SL reversed her decision and granted complainant

family sick leave for her absence on December 28th. The ABL informed

complainant of the SL's reversal by memorandum dated January 23, 1995.

Regarding the second issue, information contained in the file indicates

that, on February 21, 1995, complainant was selected for the position

of Team Coordinator in the Technical Services Department. Complainant

stated that she should not have been selected for the position because

she had no experience in the technical services area. According to her,

all of the courses in which she enrolled during her professional career

focused either primarily or secondarily on reference-related services,

not technical services. Complainant further stated that her technical

services training was limited to several basic graduate courses that

she completed over twenty years ago and that, while she is aware of the

changes in technical services, she is not knowledgeable enough in that

area to serve as Team Coordinator of the department. Regarding her

skills in Reference, her previous department, complainant stated that

she was a stellar performer in that area. She believes that she was

transferred out of the Reference Department into the more complex

Technical Services Department so that it would be more difficult for

her to do an effective job. Complainant cited two employees that she

believed were better qualified than her for the position.

The SL denied that complainant's selection as Team Coordinator in

Technical Services was based on retaliation. According to her, she had

decided to reorganize the entire library staff in an effort to improve

services and utilize staff members' strengths while minimizing their

weaknesses. As a result of this massive reorganization, four staff

members were reassigned to new positions, five were selected as Team

Coordinators, and two of the three first level supervisors were removed

as supervisors with the third becoming the first level supervisor for

the entire staff. The SL stated that complainant was chosen to become

a Team Coordinator in Technical Services because she (complainant) had

professional training in librarianship which included one undergraduate

and two graduate level courses (one in serials control) relating to

technical services work; had ten years of experience at their particular

library and, during that time, had worked with cataloging records in

the manual card-based catalog and the two computer-based catalogs;

had assisted library patrons regarding the use of the catalogs; had

verified patrons' requests for inter-library loans; and had supervised the

inter-library loan operations for a period. The SL further stated that

complainant had more formal course work in technical services subjects

than her professionally trained counterparts. Finally, the SL stated

that complainant's individual strengths and capabilities (i.e., logical,

systematic, detailed-oriented) made her the best available librarian

for the position.

The ABL stated that she played no role in the decision to place

complainant in Technical Services. She did state, however, that

complainant was qualified for the position in Technical Services because

she had a Master's Degree in Library Science which prepares librarians

to perform all aspects of library work. She also stated that the two

technicians that complainant cited as being better qualified for the

position did not have the depth of library/information education or

experience which complainant had. One of the technicians cited had

undergraduate and graduate degrees in Elementary Education and the

other one had an undergraduate degree in German. The ABL stated that

these technicians, unlike complainant, did not have a public service

background, nor were they as aware as complainant regarding public

searches for information.

Two other employees testified that they believed that complainant's

removal to Technical Services constituted reprisal because complainant

was not the best qualified person for the newly created position.

One of them stated that complainant did not have any cataloging or

serials experience, while the other one stated that complainant had

never worked in a library technical services department, nor had she

expressed an interest in such functions. A third employee refused to

state that she believed complainant's placement was based on reprisal,

but did state that no other professional service reference librarians

were moved to other departments or made team coordinators for sections

in which they had no experience.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a Title VII case

alleging discrimination is a three-step process. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-803 (1973). See, Hochstadt

v. Worcester Found. 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). First, complainant must 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.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason proffered by the agency was a

pretext for discrimination. Id. at 256.

In order to establish a prima facie case of discrimination for an

allegation of reprisal, complainant must show the existence of four

elements: (1) that she engaged in protected activity, e.g., participated

in a Title VII proceeding; (2) that the alleged discriminating official

was aware of the protected activity; (3) that she was disadvantaged

by an action of the agency contemporaneous with or subsequent to such

participation; and (4) that there is a causal connection between the

protected activity and the adverse employment action. Hochstadt,

Id; see also Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985);

Burris v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th

Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

Although the initial inquiry of discrimination 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. Id.; see also

United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

714-717 (1983).

In this case, we find that the agency has articulated legitimate,

nondiscriminatory reasons for its actions. Regarding the denial of family

sick leave, the agency stated that complainant was marked AWOL because she

failed to submit adequate documentation within the required time period.

In addressing the second issue, the agency stated that complainant was

removed from the Reference Department and assigned to Technical Services

as a Team Coordinator because her educational level and experience made

her the best qualified person for the job.

Because the agency has proffered a legitimate, nondiscriminatory

reason for the alleged discriminatory event, complainant now bears

the burden of establishing that the agency's stated reason is 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.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).

We find that complainant has failed to meet that burden.

Regarding the denial of family leave, complainant presented no

evidence indicating that she submitted in a timely matter the necessary

documentation for her absence. Furthermore, the evidence indicates

that upon being informed that the agency's policy concerning the time

period for submitting documentation for absences was ambiguous, the

SL reversed her decision and granted complainant's request for family

sick leave for the December 28 absence. Regarding the second issue,

although two witnesses stated that complainant was not the most qualified

person for the Team Coordinator position, complainant did not submit

any conclusive evidence (i.e., personnel records, college transcripts,

resumes, etc.) with which to substantiate such claims. Consequently,

we find that she failed to prove that the reasons articulated by the

agency constitute an effort to mask discriminatory animus.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we hereby AFFIRM the final

agency decision.

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:

Jan 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 after it was mailed. I certify

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

(if applicable), and the agency on:

1 On 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.

2 The SL served as complainant's second level supervisor while the ABL

served as her immediate supervisor.