01981058
12-07-2000
Thelma M. Thomas, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Thelma M. Thomas v. Department of the Interior
01981058
December 7, 2000
.
Thelma M. Thomas,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01981058
Agency No. FNP-94-127
Hearing No. 280-96-4234X
DECISION
Complainant timely initiated an appeal from the final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful 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.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she
was discriminated against based on sex (female), age (D.O.B. 8/18/30),
perceived disability (unspecified), and in reprisal for prior EEO activity
when, on April 15, 1994, she was not selected for the position of Summer
Seasonal Park Ranger, GS-3/4, at the Fort Scott National Historic Site
in Fort Scott, Kansas. For the following reasons, the Commission AFFIRMS
the FAD.
The record reveals that in 1993 complainant applied for a seasonal
park ranger position as referenced above, a position which she
had not previously held. On October 1, 1993, the agency issued a
seasonal employment certificate for the position, containing the names
of complainant and fourteen other individuals. After reviewing the
certificate, the selecting official decided to fill the seasonal positions
under her rehire authority and hired employees who had previously served
in the position and were qualified to be reappointed. Accordingly,
neither complainant nor any of the fourteen other individuals on the
employment certificate were selected.
Complainant subsequently filed a formal EEO complaint with the agency
on August 2, 1994, alleging that the agency had discriminated against
her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ).
Concluding there were no disputed material facts, the AJ issued a
decision without a hearing, finding no discrimination. Specifically,
the AJ concluded that complainant failed to establish a prima facie
case of disability discrimination because she did not demonstrate, as
alleged, that she was perceived to be an individual with a disability
within the meaning of the Rehabilitation Act. Further, the AJ found
that complainant failed to establish a prima facie case of retaliation
because, while complainant alleged that she previously filed a private
sector employment discrimination charge, she failed to demonstrate
that the selecting official was aware of this prior protected activity.
Finally, the AJ concluded that complainant did establish a prima facie
case of sex and age discrimination, but that she failed to satisfy her
ultimate burden of proof to demonstrate that, more likely than not,
the agency's proffered reason for her non-selection was a pretext for
discrimination. The FAD adopted the AJ's findings and conclusions,
finding no discrimination.
On appeal, complainant has submitted an annotated copy of the FAD as well
as a typewritten brief, asserting that the AJ's findings are incorrect,
and that the Record of Investigation (ROI) is biased and inaccurate.
Among other things, complainant contends that she worked at the facility
for two years under the "Kansas Green Thumb" program earning minimum
wage, whereas her co-workers who were also employed as teachers were
paid at the Grade 4 level. Complainant asserts that this evidenced
discrimination based on age, reasoning that the annual rehiring of
teachers who previously worked at the facility precludes selection of
"older" and "less educated" individuals for the summer seasonal positions.
In supplemental correspondence, complainant also states that she has been
a member and active volunteer for the Historic Preservation Association of
Bourbon City, including assisting in the Ft. Scott museum, and therefore
had the requisite experience for the position.
In addition, complainant submitted a pleading captioned "Finding of
Default and Order," requesting that this Commission enter a default
finding against the agency due to its failure to forward the complaint
file to this Commission within the time period specified by regulation.
Inasmuch as the material at issue has since been received, we do not find
that an adverse inference is appropriate in this particular instance.
Nevertheless, the agency is hereby admonished that failure to comply
with Commission regulations and orders may result in sanctions. See Byrd,
et al., v. Department of Agriculture, EEOC Appeal No. 01961893 (July 3,
1997), petition for enforcement granted, EEOC Petition No. 04980004
(December 12, 1997).
In reviewing this appeal, we do not reach the issue of whether or not the
AJ correctly decided that complainant failed to demonstrate that she is an
individual with a disability within the meaning of the Rehabilitation Act.
Rather, after a careful review of the record, we find that even assuming
arguendo complainant is an individual with a disability, and further
assuming she established a prima facie case on any alleged basis, the
AJ correctly found that complainant did not satisfy her burden to prove
that the agency's proffered reasons for her non-selection were a pretext
for discriminatory or retaliatory intent. In reaching this conclusion,
we note that complainant has proffered no evidence to support an inference
that the selecting official was motivated by discrimination or retaliation
rather than her stated motivation of hiring individuals who had previously
served in the position and were therefore more acquainted with the park,
given the limited time available to hire and train seasonal employees.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus on any alleged basis. We discern no basis to
disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 7, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2To the extent complainant notes that the FAD references "religion" as
a basis at the end of the decision, complainant is correct that this is
inapplicable to the instant complaint. The agency is cautioned to ensure
individualized review of each complaint and careful preparation of each
final decision.