01971026
02-02-2000
Richard L. Beams, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Richard L. Beams v. Department of the Interior
01971026
February 2, 2000
.
Richard L. Beams,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01971026
Agency Nos. BIA94067; BIA94068; BIA94069; BIA94070; BIA95028; BIA95029
Hearing Nos. 280-96-4199X; 280-96-4202X
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision ("FAD") concerning his complaints alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.; the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq.; and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq.<1> Complainant asserts
that agency officials have discriminated against him on the basis of race
(American Indian), sex (male), age (born on 10/06/40), disability (broken
hip)<2> and/or reprisal (prior EEO activity), by not selecting him for
various positions with the agency. We accept the appeal in accordance
with the provisions of EEOC Order No. 960.001. For the following reasons,
we AFFIRM the agency's decisions.
BACKGROUND
From 1974 to 1991, complainant was employed with the agency's
Bureau of Indian Affairs in Kansas. His last position was as a
soil conservationist. In April 1991, after the agency issued him a
fourteen-day suspension for refusing to participate in an official
proceeding, complainant resigned from his position claiming his supervisor
constructively discharge due to sex discrimination.
Beginning in 1992, complainant began seeking re-employment with the
agency. Complainant applied for the following six positions which are
the subjects of this matter:
(1) (BIA-94-067) In August 1992, complainant applied for the position of
Soil Conservationist. The agency removed his name from the Certificate
of Eligibles ("certificate") after his former supervisor objected to his
eligibility citing his suspension and stating that his re-employment
would have an adverse effect on efficiency. Complainant was the only
eligible Indian candidate on the initial certificate. After removing
complainant's name from the subsequent certificate, another applicant
(non - Indian) received the position.
(2) (BIA-94-068) In October 1993, complainant applied for the position of
Natural Resource Specialist. Thereafter, the agency informed complainant
that the vacancy had been canceled.
(3) (BIA-94-069) In July 1993, complainant applied for the position of
Rights Protection Specialist. The agency canceled the announcement due
to lack of funding.
(4) (BIA-94-070) In July 1993, complainant applied for the position of
Realty Specialist. The agency selected another applicant (non - Indian).
(5) (BIA-95-028) In December 1993, complainant applied for the position
of Surface Reclamation Specialist. Initially, the agency sought to hire
a non - Indian applicant because it did not believe any of the Indian
candidates qualified for the position. The agency however never filled
the position because of a hiring freeze.
(6) (BIA-95-029) In January 1994, complainant applied for the position
of Natural Resources Specialist. The agency canceled the announcement
and re-announced it at a lower grade level. The agency made no selection
for the position because of budget issues.
Believing he was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed these six formal complaints
between January 19, 1994 and April 6, 1995. At the conclusion of the
investigations, complainant received a copy of the investigative reports
and requested hearings before an EEOC Administrative Judge ("AJ"). The
AJ held a hearing for complainants BIA-94-070 and BIA-95-028 and issued
a Recommended Decision ("RD") finding no discrimination. For complaints
BIA-94-067, BIA-94-068, BIA-94-069 and BIA-95-029, the AJ issued a RD
without a hearing also finding no discrimination.
In the first RD, the AJ concluded that regarding Realty Specialist
(BIA-94-070), complainant established prima facie cases of sex, age
and reprisal discrimination because he was qualified for the position
but was not selected in favor of an individual outside his protected
groups and because the selecting officials were aware of his prior EEO
activity at the time of the selection. The AJ then concluded that the
agency articulated a legitimate, nondiscriminatory reason for its action,
namely, that unlike complainant, the selectee had prior experience as a
Realty Specialist. The AJ concluded that complainant failed to provide
sufficient evidence demonstrating that the agency's articulated reason
was pretextual or motivated by sex, age or reprisal discrimination. As
for the Surface Reclamation Specialist position (BIA-95-028), the AJ
concluded that complainant failed to establish a prima facie case of
race, age or reprisal discrimination because the agency never filled
the position due to a hiring freeze.
In the second RD, the AJ initially found that complainant could not
establish disability discrimination because he failed to present any
evidence demonstrating that he suffered from a physical or mental
impairment as defined by the Rehabilitation Act.<3> The AJ next
concluded that complainant failed to establish a prima facie cases of
discrimination regarding the positions of Natural Resources Specialist
(BIA-94-068), Rights Protection Specialist (BIA-94-069), and Natural
Resources Specialist (BIA-95-029), because the positions were either
canceled or never filled.
As for the Soil Conservationist position (BIA-94-067), the AJ concluded
that complainant established prima facie cases of race and reprisal
discrimination but failed to establish a prima facie case of age
discrimination because the evidence indicated that the selectee was
within his age group. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that the
selecting official stated because of complainant's past employment history
at the facility, she filed an objection to complainant's eligibility
with the facility's personnel office. Finally, the AJ concluded that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination. The AJ
found that the evidence revealed that the selecting official's decision
to challenge complainant's eligibility was motivated by her concerns
regarding complainant's past employment and not by race or reprisal
discrimination.
The agency's FAD adopted the AJ's RDs. On appeal, complainant contends
that the AJ erred by not allowing him adequate discovery, by only
holding a hearing concerning two of his complaints, and by finding
that the agency had not discriminated against him. Complainant also
contends that the agency failed to timely and thoroughly investigate
his complaints. The agency responds by restating the position it took
in its FAD, and requests that we affirm its FAD.
ANALYSIS
After a careful review of the record in its entirety, the Commission
finds that the AJ's RDs set forth the relevant facts and properly analyze
the evidence using the appropriate regulations, policies and laws. The
Commission notes that an AJ may issue a decision without a hearing when
there is no genuine issue of material fact. In reviewing the record,
we find that complainant failed to demonstrate that there were genuine
issues of material fact requiring a hearing in the four consolidated
cases decided without a hearing. Likewise, a review of record does not
indicate that the investigations of complainant's claims were deficient
in any matter. However, we do acknowledge that the agency's processing
of this case caused considerable delay. The investigations were well
beyond the 180-day period required by EEOC regulation. Additionally,
after complainant filed his appeal and the Commission requested the
complaint files, the agency took nearly three years to forward the
complete files to the Commission. We strongly remind the agency of
its obligations under the Commission's regulations. In the future, the
agency should be aware that under the new regulations such delays may
result in sanctions as described in 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified as 29 C.F.R. �1614.404) and EEOC Management Directive 110,
9-13 (November 9, 1999).
As to the merits of complainant's claims, based on the evidence of
record, the Commission discerns no basis to disturb the AJ's findings
of no discrimination. Regarding the positions of Natural Resources
Specialist (BIA-94-068), Rights Protection Specialist (BIA-94-069),
Surface Reclamation Specialist (BIA-95-028), and Natural Resources
Specialist (BIA-95-029), we agree with the AJ that complainant did not
demonstrate disparate treatment in his non-selection for these positions
because for various reasons the positions were never filled.
As for the Realty Specialist (BIA-94-070) position, we agree with the
AJ that while complainant established prima facie cases of sex, age
and reprisal discrimination, he failed to demonstrate that management's
selection of selectee was based on any thing other than the selectee's
prior experience which was superior to that of complainant. Regarding
the Soil Conservationist position (BIA-94-067), we also agree with the
AJ that while complainant established prima facie cases of race and
reprisal discrimination, the evidence failed to show that complainant's
former supervisor was motivated by discrimination when she objected to
complainant's application. In light of the circumstances surrounding
complainant's prior resignation, we find. that the supervisor's objection
reasonable even though it was later determined that complainant was
eligible and could apply for positions within the agency.
Therefore, in light of our review of the record, we discern no basis
upon which to overturn the AJ's findings of no discrimination in this
matter. Accordingly, we AFFIRM the agency's final decision which adopted
the AJ's findings of no discrimination.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 2, 2000
__________________
Date
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:
__________________
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.
2We note that complainant only asserts disability discrimination in
agency complaint number BIA-94-067.
3Pursuant to the Rehabilitation Act Amendments of 1992, the Americans
with Disabilities Act's employment standards apply to all non-affirmative
action employment discrimination claims filed by federal applicants or
employees with disabilities under Section 501 of the Rehabilitation
Act. Pub. L. No. 102-569 � 503(b), 106 Stat. 4344 (1992)(codified as
amended at 29 U.S.C. � 791(g)(1994)).