0120090424
02-20-2009
Barbarajean Bibbs, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Barbarajean Bibbs,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120090424
Hearing No. 530-2007-00155X
Agency No. TD-06-0404
DECISION
Complainant filed an appeal from the agency's September 26, 2008 final
order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. For the following reasons, the Commission AFFIRMS the
agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Mail and File Clerk at the agency's Wage and Investment
Division facility in Philadelphia, Pennsylvania. On September 8, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of disability1 and in reprisal for prior protected
EEO activity when:
1. On or about June 12, 2006, complainant received a memorandum
offering her an "Opportunity to Consider Alternative Discipline;"
2. On July 1, 2006, complainant received a letter proposing a 14-day
suspension; and
3. On July 31, 2006, complainant was suspended for 14 days for the
period August 7, 2006 through August 20, 2006
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing and the AJ held a hearing on September 3, 2008, and issued a
decision on September 19, 2008.
In her decision, the AJ found that complainant did not establish a
prima facie case of reprisal discrimination. While complainant had
previously filed EEO complaints, the AJ found that the agency officials
responsible for the actions described in the complaint were unaware of
complainant's prior EEO activity. The AJ noted that complainant's job
performance was not at issue. Rather, the AJ observed, complainant's
supervisors stated that complainant's attitude and her behavior caused
disruptions in the workplace that the agency sought to correct by
issuing progressive discipline culminating in a 14-day suspension.
The AJ found the witnesses were persuasive at the hearing and that
complainant did not deny that she had behaved as described by the
testifying officials. Accordingly, the AJ found that complainant did
not show that reprisal motivated the agency's actions as alleged in
the complaint. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we find that the AJ's decision is supported by
substantial evidence in the record. Specifically, we note that nothing
in the record shows that complainant's supervisors were aware of her
prior EEO activity. Significantly, we concur with the AJ's finding that
complainant does not deny that she conducted herself in the workplace in
the manner described by the agency officials. Complainant's supervisor
noted that complainant would barricade herself with carts and equipment
creating a fire hazard and complainant was particular about those to
whom she would speak and from whom she would take direction, loudly
voicing her displeasure when confronted by those in authority over her.
Complainant received progressive discipline for failing to abide by
the directions of her lead and first line supervisor and for arguing
with those charged with providing assignments and instructions to her.
We find no reason to disturb the AJ's decision finding that complainant
did not show that she was subjected to discrimination when she was
disciplined for unacceptable behavior in the workplace.
We AFFIRM the agency's final decision finding no discrimination.
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
February 20, 2009
__________________
Date
1 The record shows that complainant withdrew disability as a basis on
November 13, 2006.
??
??
??
??
2
0120090424
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090424