0120090906
05-15-2009
Ann M. Swartz, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Ann M. Swartz,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120090906
Agency No. EEO-06-081-A3
Hearing No. 450-2008-00122X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's October 14, 2008 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.
Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (Caucasian), sex (female), color (white), age (59), and in reprisal for prior EEO activity when:
1. on May 12, 2006, the Director, Office of Public and Indian Housing, suspended her without pay for two days (May 23 and 24, 2006);
2. on June 30, 2006, the Director, Technical Support Division, lowered her performance rating for the period of February 1, 2005 to January 1, 2006;
3. she was suspended from her position of Program Support Assistant, GS-7, for fourteen (14) days based on charges of making unfounded accusations about a co-worker, falsification of a material fact, and disruptive conduct;
4. [identified co-worker], Public Housing Revitalization Specialist, grinned and smirked at her as he passed her cubicle;
5. the Director, Office of Public Housing, did not submit her Worker's Compensation request;
6. the Division Director and Deputy Director, Office of Public Housing, refused to provide her with reasonable accommodation;
7. the Deputy Director continues to ignore her medical documentation, did not respond to her November 28, 2006 e-mail asking to recover her HUD Form 100, and added mail pickup to her responsibilities;
8. on December 20, 2006, the Director changed her work schedule was changed from a 10-hour day to an 8-hour day;
9. her time and attendance folder was in a separate cabinet from the other employees;
10. on December 26, 2006, she asked [Desk Officer] for assistance and did not receive a response;
11. on January 3, 2007, the Division Director denied her request for assistance;
12. on January 4, 2007, the Deputy Director denied her request for reasonable accommodation;
13. management ignored her doctor's request for light duty;
14. she believes she was mentally and physically abused when her advanced leave was not approved until the day of her surgery;
15. on January 8, 2007, the Director threatened her with AWOL if she did not come to work the next day; and
16. since February 16, 2007, the Director has not welcomed her back from surgery, stated that she was missed or asked how she was feeling.
The record reflects that a hearing was held before an EEOC Administrative Judge (AJ). After considering the testimony of the witnesses, the AJ determined that complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, sex, color, age, and retaliation. With respect to complainant's harassment claim, the AJ found that complainant did not prove she was subjected to harassment sufficiently severe or pervasive so as to render her work environment hostile.
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 a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 15, 2009
__________________
Date
2
0120090906
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090906