Janice McCain, Complainant,v.Condoleezza Rice, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionSep 27, 2007
0120071025 (E.E.O.C. Sep. 27, 2007)

0120071025

09-27-2007

Janice McCain, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.


Janice McCain,

Complainant,

v.

Condoleezza Rice,

Secretary,

Department of State,

Agency.

Appeal No. 0120071025

Agency No. DOSF022062

Hearing No. 100200600187x

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's December 1, 2006, 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.

In a formal complaint dated June 1, 2005, complainant claimed

discrimination based on race (black) and sex (female) when (a) she was

removed from her position as a Student Trainee/Student Career Experience

Program (SCEP) on January 31, 2005; and (b) she was harassed and subjected

to a hostile work environment. Following an investigation, complainant

requested a hearing before an EEOC Administrative Judge (AJ). The AJ

issued a decision without a hearing on September 29, 2006, and the agency

adopted his finding that it did not discriminate against complainant.

At the time of her removal, complainant was assigned to the Audits unit

of the Office of Inspector General (OIG). She began her employment with

the agency OIG under its Cooperative Education Program (COOP) in 1998,

while in a Ph.D. program in African Studies at Howard University; she

began as a GS-9 and was promoted to a GS-13 as of May 2002. In around

June 2003, OIG eliminated the COOP program and replaced it with SCEP,

which limited participants to four years of work at the agency and to

those pursuing an undergraduate degree. Complainant was given extensions

until January 31, 2005, with the promise of a permanent appointment

if she completed her degree by that date; she did not do so and was

removed. Complainant also claimed that she was subjected to a hostile

work environment when she was not allowed to remain in Inspections and

returned to Audits; the agency explained that she was not qualified as

an Inspector and could not move without merit competition.

The AJ found that, to the extent that complainant sought to show that the

agency's initiation of SCEP and her termination constituted discrimination

or subjected her to a hostile work environment, she did not show that

the incidents she identified interfered with her work performance or

were connected to her race or sex. After a review of the record in

its entirety and consideration of all statements submitted on appeal,

including those not specifically addressed, 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,1 and a preponderance of the record evidence

does not establish that discrimination occurred.

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

___9/27/07_______________

Date

1 In the context of an administrative proceeding, an AJ may properly

consider issuing a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,

2003). After a careful review of the record, the Commission finds that

the AJ appropriately issued a decision without a hearing, as complainant

failed to proffer sufficient evidence to establish that a genuine issue

of material fact exists such that a hearing on the merits is warranted.

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0120071025

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036