01972313
02-04-2000
Karyn R. Knott, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Karyn R. Knott v. Small Business Administration
01972313
February 4, 2000
.
Karyn R. Knott,
Complainant,
v.
Aida Alvarez,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01972313
Agency No. 0894439
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), sex (female), age (46), and physical disability
(back, leg, asthma and sciatic nerve problems), 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 (ADEA), as amended, 29
U.S.C. �621 et seq.; and the Rehabilitation Act of 1973,<1> as amended,
29 U.S.C. �791, et seq.<2> Complainant alleges she was discriminated
against when: (1) in June of 1994, she was reassigned from her position
as Electronic Data Interchange (EDI) Program Coordinator/Manager,
Office of Minority Enterprise Development (MED), Division of Minority
Small Business Outreach (DMSBO) to a position in the Management and
Technical Assistance Division with no advancement potential; (2) the
responsibilities for the EDI Program were split into three offices,
but she was denied the opportunity to work in any of these offices. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is AFFIRMED.
The record reveals that complainant was employed as a GS-1101-13
General Business and Industry Specialist with the agency's MED/DMSBO,
Washington, D.C. office, when the above-stated incidents of discrimination
occurred. Believing she was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a formal complaint on August 4,
1994. At the conclusion of the investigation, complainant was informed
of her right to request a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge, or request a final decision by
the agency. After failing to respond within the appropriate time frame,
the agency issued its FAD.
The FAD found that complainant failed to establish a prima facie case of
discrimination because she presented no evidence that similarly situated
individuals not in her protected classes were treated differently under
similar circumstances. Regarding allegation (1), the FAD specifically
found that complainant failed to demonstrate a prima facie case of
disparate treatment disability discrimination, as although management
knew of her physical impairments, there was insufficient evidence to
establish that the agency reassigned her due to them. The FAD found
that in any event, the agency articulated legitimate, nondiscriminatory
reasons for reassigning complainant, namely, that as her former office
(MED/DMSBO) was abolished, it necessitated the transfer of all employees
who worked there; with employees being kept at their grade level but
not necessarily being reassigned to equivalent duties. The Director
of DMSBO (African-American female, age 57, no disability) stated that
complainant's work on EDI was not in her position description and was
undertaken on her own initiative. Further, the Associate Director for MED
(African-American male, age 43, no disability) stated that complainant's
transfer did not adversely affect her promotion potential as there were
several GS-14 positions and one GS-15 position to which complainant could
have applied. The FAD found that complainant failed to demonstrate that
the agency's nondiscriminatory reasons for reassigning complainant were
pretextual and motivated by discriminatory animus. Regarding allegation
(2), the agency found that complainant failed to establish a prima facie
case of discrimination on any basis, as she failed to demonstrate that
she was not reassigned to one of the three newly created offices due to
any discriminatory factors or that similarly situated employees were
treated differently. On appeal, complainant makes no new arguments,
while the agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); and
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),
the Commission finds that the evidence is insufficient to demonstrate a
prima facie case of discrimination on the basis of complainant's race,
age, sex or disability, as there were no similarly situated employees not
in complainant's protected groups who were treated differently when the
DMSBO was abolished and employees were reassigned within the agency. We
further find that in any event, the agency articulated legitimate,
nondiscriminatory reasons for its actions regarding complainant, and
that these reasons were not demonstrated to be pretextual. Therefore,
after a careful review of the record and arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
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 [PAGE 4] 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 4, 2000
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
2On 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.