0520140503
02-11-2016
Chanelle B.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chanelle B.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Request No. 0520140503
Appeal No. 0120112089
Hearing No. 570-2008-00824X
Agency Nos. ARCEHECSA06DEC04759, ARCEHECSA07NOV04644
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120112089 (July 10, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c). For the reasons stated below, Complainant's request for reconsideration is DENIED.
ISSUES PRESENTED
The issues presented in this case are whether the appellate decision erred in finding that the Equal Employment Opportunity Commission Administrative Judge (AJ) did not abuse his discretion when he remanded Complainant's case to the Agency for a decision after she failed to adhere to the AJ's order. Complainant also argued that the investigation of the case was improperly performed.
BACKGROUND
In the appellate decision, Complainant, a Program Manager, maintained that she was subjected to a hostile work environment on the bases of sex (female), disability (morbid obesity), age (over 40), and in reprisal for prior protected EEO activity when in complaint 1, Agency No. ARCEHECSA06DEC04759, she was treated by her supervisor in a demeaning, hostile, and humiliating manner. She was excluded from meetings and her duties. Management refused to provide her with equipment, did not tell her about upcoming work details or temporary reassignment opportunities, monitored her leave, yelled at her and her supervisor failed to let her accompany him to meetings. Complainant also maintained that she was subjected to discrimination when she was not selected for a position for which she applied and was found eligible, but her supervisor disclosed to those on the selection committee that she was contesting her "special" performance appraisal. Complainant also contended that her requests for medical leave were not returned in a timely fashion.
In complaint no. 2, Agency No. ARCEHECSA07NOV04644, Complainant alleged that she was subjected to discrimination and/or a hostile work environment on the bases of sex, disability, age, and in reprisal for prior protected EEO activity when she disagreed with her annual performance rating dated November 1, 2007, and when the Deputy Chief and Civil Works Planning Manager trivialized and/or left off activities and actions Complainant had submitted. Complainant also indicated that she was denied leadership training opportunities at the Eastern Management Development Center which was listed in her Individual Development Plan, and that her request to telework was denied.
Complainant requested a hearing before an Administrative Judge. However, the AJ dismissed the hearing request for failure to cooperate in the discovery process and remanded the complaint to the Agency for the issuance of a final decision. The Agency issued a decision which found that Complainant did not demonstrate that she was subjected to discrimination. Complainant appealed to the Commission. The Commission found that the AJ acted within his discretion to dismiss Complainant's hearing request when Complainant failed to comply with the AJ's orders. The record reflected that both parties were notified that failure to follow the orders of the AJ or comply with the Commission's regulations may result in sanctions, pursuant to 29 C.F.R. � 1614.109(f)(3). The Commission found, that Complainant did not follow the orders of the AJ by failing to respond substantively to the Agency's discovery requests. Complainant was given the opportunity to show good cause why sanctions should not be issued against her but did not do so. Accordingly, the Commission found that the AJ properly dismissed Complainant's hearing request.
Further, the Commission found that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its actions. Complainant did not show that any similarly situated individuals were treated differently. Additionally, the Commission found that Complainant failed to show that her qualifications for the positions were plainly superior to the selectees' qualifications or that the Agency's actions were motivated by discrimination. Moreover, the Commission found that Complainant failed to show, by a preponderance of the evidence that she was discriminated against on the bases sex, disability, age, or reprisal. Finally, Complainant failed to show that she was subjected to a hostile work environment.
REQUEST FOR RECONSIDERATION CONTENTIONS
Complainant argues that the Agency's brief in response to her request for reconsideration is untimely and therefore should not be considered. Further she contends that due to the Agency's improper and illegal policies, practices, or operations the record was and is incomplete, inadequate, and contrary to policy, regulations, and directives of the Commission. Complainant requests that the Commission require the Agency to develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. Complainant contends that it was the Agency that initially and unnecessarily delayed matters by rescheduling fact-finding for a later date because Complainant was under medication. Complainant maintains that she was more than willing to testify at that time. Complainant also indicates that, contrary to the Agency's argument, management was aware of how to contact her at her remote address as she had previously teleworked.
Further, Complainant contends that her alleged failure to prosecute was incorrect as she filed motions for extensions but that the AJ assigned to the case, left the Commission before responding to her motions and the new AJ that was subsequently assigned in all likelihood just wanted to "clear the books" of the caseload he had inherited, and therefore sent her case back to the Agency for a final decision. Complainant maintains that the AJ inappropriately dismissed her request for a hearing after she failed to appear for her deposition without good cause as requested by the order. Complainant contends that she had good cause because she did not in fact receive the order and secondly as she was teleworking from her remote location, she did not have time to travel back to Washington, D.C. for the deposition.
Complainant requests the Agency's brief be ignored, and that sanctions be issued against the Agency in favor of Complainant that treats all of her allegations and statements as being uncontested and factual. She also requests that little credence be given to the Agency's evidence, and that a decision be issued in her favor with equitable relief being granted to her.
The Agency submitted an untimely brief that will not be considered.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the Complainant's reconsideration request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. First and foremost, we find that Complainant simply reiterates arguments already made on appeal that were previously and correctly addressed by the previous decision. AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Like our prior decision, we find no persuasive evidence that the AJ's actions in this case constituted an abuse of that discretion. Likewise, we note that to the extent Complainant believed the Agency's investigation was inadequate, a view we do not hold, she could have corrected any alleged deficiencies through the Administrative Judge. By not complying with the AJ's orders, however, she was not able to take advantage of this opportunity. Complainant has not provided any evidence which suggests that the appellate decision involved a clearly erroneous interpretation of material fact or law; or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Accordingly, the decision in EEOC Appeal No. 0120112089 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/11/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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