0120055681
07-11-2007
Mariah Regan,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 01200556811
Agency Nos. BIA03029; BIA04007
Hearing No. 350200400078x
DECISION
On August 26, 2005, Mariah Regan (complainant) filed a timely appeal from
the agency's final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the agency's final action is affirmed.
In formal complaints dated June 19, 2003 (BIA03029) (C1), and November 18,
2003 (BIA04007) (C2), complainant claimed discrimination based on race
(white), color (white), reprisal, age (49), and sex when:
C1: on May 23, 2003, complainant's teaching contract
was not renewed for the 2003-2004,
school year at the Pintado Community School (Pintado), Eastern
Navajo Agency (ENA);
C2: (a) since May 2003, the manager of the ENA (M1) and
management officials at Pintado prevented her from
being selected at seven other schools; and
(b) on August 13, 2003, she learned that another person
was hired at Mariano Lake School after
she was given a verbal offer in July 2003.
Following an investigation, complainant requested a hearing, and a
hearing was conducted on June 5, 2005, before an EEOC Administrative
Judge (AJ). The AJ issued a decision on July 5, 2005, finding that,
assuming complainant established a prima facie case on all bases alleged,
the agency articulated legitimate, nondiscriminatory reasons for its
actions, and complainant did not demonstrate that the agency's reasons
were a pretext, or a sham, to discriminate against her. For purposes
of our further analysis, we will assume complainant established a prima
facie case on all bases alleged.
Complainant taught at Pintado from 1993, to 2003. For the school years
2001-2002, and 2002-2003, school managers recommended that her contract
not be renewed; through an administrative appeal process, that decision
was overturned by M1. When, in the Spring of 2003, the Principal and the
Academic Officer, complainant's immediate supervisor (S1), recommended
that her contract not be renewed for the 2003-2004, school year, M1
sustained that decision, as did the next higher level of administrative
appeal, and she was formally notified by letter dated May 23, 2003.2
With regard to C1, the agency stated that it did not renew complainant's
contract for 2003-2004, because, during the 2002-2003 school year, (a)
she filed a false child abuse report against S1;3 (b) she harassed and
intimidated a fellow teacher; (c) she invalidated test scores when she
allowed her class extra time; and (d) her behavior was causing conflict
among the teaching staff. In support, the agency pointed to documents
and reports in the record, including intra-agency communications and
letters from other teachers, and hearing testimony by the Principal and
M1, as well as affidavits from other employees.
In C2, complainant identified seven elementary schools in the ENA where
she applied but was not selected in the summer of 2003. The agency noted
that complainant was a state-certified teacher, deemed qualified for the
positions, and interviewed for each. Complainant acknowledged that none
of the interviewers inquired about her prior EEO activity. The reasons
offered by the selecting officials for complainant's non-selections
included, among other things, better qualified applicants, negative
references, Indian preference,4 and, in one case, because she was seen
as being "loud, obnoxious, and a know-it-all . . . ." AJ, p. 10.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
On appeal, complainant indicated that she was labeled by management at
Pintado as a "troublemaker," but contended that it was management who
"incited serious workplace hostility" against her for, inter alia,
filing EEO complaints. She also blamed the "outgoing management" for
prejudicing the incoming management, pointing to certain pages of the
Principal's statement. In addition, she pointed out that some of the
events used by the principal to justify her non-renewal took place after
he had decided to not recommend renewal of her contract. Finally, she
averred that all managers were biased against her because of her union
activities. As to the non-selections at the other schools, i.e., C2,
she argued that she was black listed in retaliation and that M1 urged
schools in the ENA not to hire non-renewed teachers.
Complainant's statement, even if taken as true, does not demonstrate that
any of the actions by agency officials were a pretext for discrimination.5
Nowhere in her appeal statement does she allude to EEO considerations or
show that any of the statements or testimony of others were grounded in
bias or animus based on her race, color, sex, age, or in reprisal for
prior EEO activity. In fact, the evidence she produced, without more,
does not demonstrate pretext. For example, she contended that most of
the reasons cited by the principal for her non-renewal took place after
he had decided not to renew her; however, in his statement (ROI, p. 239),
he indicated that he had decided not to renew her contract because of
the conflict she engendered among the staff. It is the complainant's
burden to demonstrate pretext, and we find that she did not meet her
burden here.
With regard to complainant's nonselection for a position at the Mariano
School, i.e., C2(b), we note that the principal explained that she tried
to hire complainant pursuant to her emergency authority. In July 2003,
she made a verbal offer to complainant; however, when complainant failed
to signed the appropriate paperwork by a certain date, the principal
was forced to consider other individuals when she discovered that a
certificate containing the names of other qualified applicants existed.6
Subsequently, although the principal recommended complainant, the school
board elected to hire a male applicant.7 Although the principal indicated
that she had the authority to override the school board's decision,
she elected not to do so because of time considerations.8 The principal
stated that she "[h]ad to start school. [She] had a classroom to prepare
for, students to prepare for and we just started work."9
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, and following the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), we find that complainant
has not met her burden to demonstrate, by preponderant evidence,
that the agency's reasons were not its true reasons but more likely
than not a pretext, i.e., the agency's actions were based on illegal,
discriminatory factors. See Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993). Complainant has not shown that factors of race,
color, sex, age, or reprisal led to the decisions of the agency.
CONCLUSION
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____7-11-07_____________
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 On April 1, 2003, complainant was placed on administrative leave
through the end of her contract, on May 23, 2003.
3 Complainant acknowledged that she filed this report on the date she
learned that S1 and the Principal of Pintado did not recommend that her
contract be renewed. HT at 114-116.
4 See 42 U.S.C. � 2000e-2(i) of Title VII; Section 13 of the Commission's
Compliance Manual (December 2, 2002), Part II.B; EEOC Policy Statement on
Indian Preference Under Title VII, 8 FEP Manual (BNA) 405:6647-54 (1988).
5 Complainant is advised that the Commission does not have jurisdiction
over claims of anti-union bias.
6 ROI, p. 390.
7 The principal stated that the school board was impressed with the
selectee's background of working with museums in Chicago and felt that he
would be a role model for the children. ROI, p. 391. According to the
principal, the board "wanted children to see a male teacher at the lower
grade." Id. We do not find this testimony to constitute direct evidence
of discrimination. Direct evidence of discrimination may include actions,
written or verbal policies, or statements made by an agency official
that on its face demonstrates a bias against a protected group and is
linked to the complained of adverse action. Jaakkola v. Department of
Commerce, EEOC Request No. 05950390 (August 29, 1996); Grant v. Hazelett
Strip Casting Corp., 880 F. 2d 1564, 1569 (2d Cir. 1989). Here, a fair
reading of the principal's affidavit indicates that the school board felt
that the selectee, in addition to being qualified, would have a positive
influence on the students because he was a male teacher. There is no
indication that complainant was not considered because of her sex.
Employers generally have broad discretion to set policies and to carry
out personnel decisions and should not be second guessed by the reviewing
authority absent evidence of unlawful motivation. Burdine, 450 U.S. at
259. An agency has even greater discretion when it is filling management
level or specialized positions. Hickman v. Department of Justice (Drug
Enforcement Agency), EEOC Appeal No. 01A11797 (December 20, 2001)(citing
Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)). In the present
case, the school board, in choosing between two qualified applicants,
chose the individual that it felt would be better suited for the job.
According to the principal, the school board wanted to see if the
selectee's experiences with the museums in Chicago could be incorporated
in a way to get the children interested. ROI, p. 392. Absent a showing
that proscribed considerations entered into the decision making process,
we will not substitute our judgment for that of a selecting official.
8 ROI, p. 396.
9 Id.
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0120055681
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055681