Claudia S. Glover, Complainant,v.Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01a12935 (E.E.O.C. Sep. 18, 2002)

01a12935

09-18-2002

Claudia S. Glover, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.


Claudia S. Glover v. Department of Health and Human Services

01A12935

September 18, 2002

.

Claudia S. Glover,

Complainant,

v.

Tommy G. Thompson,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01A12935

Agency No. NCIEEO990008

Hearing No. 120-AO-3401X

DECISION

Claudia S. Glover (complainant) timely initiated an appeal from the

agency's final order 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the following reasons, the Commission affirms the agency's final

order.

The record reveals that complainant, a Health Statistician at the

agency's National Cancer Institute, Bethesda, Maryland facility, filed

a formal EEO complaint on August 23, 1999, alleging that the agency had

discriminated against her on the bases of race (African-American), color

(dark complexion), and sex (female) and subjected her to retaliation

for prior EEO activity (under Title VII) when she received an official

reprimand for misconduct on February 19, 1999.<1>

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of race, color or sex discrimination, noting that she proffered nothing

beyond her own opinion to indicate that she was disciplined as a result

of her membership in those protected groups. The AJ also concluded,

however, that complainant established a prima facie case of retaliation,

in that she engaged in prior EEO activity of which her supervisor,

the named responsible management official (RMO), was aware, and was

subsequently reprimanded.

The AJ further concluded that the agency articulated a legitimate,

nondiscriminatory reason for its action. The AJ found that complainant

moved a file cabinet from the common office area into her own office

without permission and that when RMO told her to replace the cabinet,

she refused and engaged in an angry discussion with him. The AJ concluded

that RMO issued the official reprimand based on this behavior.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reason was a pretext to mask unlawful

discrimination and/or retaliation. In reaching this conclusion, the

AJ found complainant's contention that she did not raise her voice when

speaking to RMO on the day in question unconvincing, given testimony from

witnesses that both complainant and RMO spoke loudly. The AJ noted that

even the statements complainant admitted to making established that she

intended to provoke RMO and communicate her defiance of his authority.

The AJ further noted that RMO's claim that he did not raise his voice

during the discussion was also not credible, but concluded that this did

not establish that the official reprimand was retaliatory. The AJ found

that the record established that complainant moved a file cabinet into

her office that she was not authorized to move, that she defied RMO's

directive to return the cabinet, and that she engaged in a brief but

heated argument with RMO over the event. The AJ concluded that this

behavior was the basis for the reprimand and that complainant failed

to prove that, more likely than not, the reprimand was discriminatory

or retaliatory.

The agency's final order implemented the AJ's decision.

On appeal, complainant restates arguments previously made at the hearing.

She also contends, among other things, that the AJ erred in allowing

RMO to make false statements throughout the hearing. She argues that

a reexamination of the record will show that she endured many years of

discrimination and retaliation at the hands of RMO.

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.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record

and 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 toward complainant's race,

color or sex. We discern no basis to disturb the AJ's decision.

Although complainant argues that the AJ erred in relying on RMO's

testimony about the event in question, the AJ stated in her decision

that neither complainant nor RMO testified credibly about the event that

led to the reprimand. Specifically, the AJ noted that both complainant

and RMO testified that only the other raised his/her voice during the

discussion, while the testimony of other witnesses established that

both spoke loudly. The AJ further concluded, however, that the record

establishes that complainant moved a cabinet into her office that she

was not authorized to move, and defied RMO's authority by refusing

to return the cabinet and engaging in a heated discussion with him.

These findings are supported by substantial evidence in the record.

Furthermore, although complainant argues on appeal that the AJ conspired

with the agency representative to �fix the outcome� of the case, she

offers no evidence whatever of any improper conduct on the part of the

AJ or the agency representative. Therefore, after a careful review of

the record, including complainant's contentions on appeal, the agency's

response, and arguments and evidence not specifically addressed in this

decision, we AFFIRM the agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

September 18, 2002

Date

1 Complainant also alleged that she received an inaccurately low

performance appraisal in March 1999. The record reveals that this issue

was dismissed on September 10, 1999. This partial dismissal occurred

prior to the November 9, 1999 revisions to 29 C.F.R. Part 1614, which

eliminated the right to immediately appeal partial dismissals, and there

is no evidence to indicate that complainant appealed this dismissal at

the appropriate time. Accordingly, the performance appraisal issue will

not be addressed in this decision.