0120063474
05-14-2008
Jennifer Harris-Reid, Complainant, v. Margaret Spellings, Secretary, Department of Education, Agency.
Jennifer Harris-Reid,
Complainant,
v.
Margaret Spellings,
Secretary,
Department of Education,
Agency.
Appeal No. 01200634741
Hearing No. 110-2005-00260X-AES
Agency No. ED20042400
DECISION
On May 19, 2006, complainant filed an appeal from the agency's April
24, 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). 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 Loan Analyst, GS-1101-11, at the agency's Atlanta, Georgia facility.
On June 2, 2004, complainant filed an EEO complaint alleging that she was
discriminated against in reprisal for prior protected EEO activity when
on March 23, 2004, she was not selected for any vacant Loan Analyst,
GS-1101-12, positions advertised under vacancy announcement number
FSA-2004-0101.
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 timely
requested a hearing and the AJ held a hearing on December 12, 2005.
Following the hearing, the AJ issued a decision dated March 28, 2006,
finding no discrimination. The AJ found that although complainant
established a prima facie case of reprisal discrimination, the agency
nonetheless articulated legitimate, nondiscriminatory reasons for
its actions. Namely, that complainant did not perform as well during
her interview as the selectees did. The AJ concluded that complainant
failed to show that the agency's articulated reasons were a pretext for
unlawful reprisal discrimination.
The agency subsequently issued a final order adopting the AJ's finding
of no discrimination. On appeal, complainant contends that the AJ erred
in finding that the agency articulated legitimate, nondiscriminatory
reasons for its actions. Complainant further contends that because she
established a prima facie case of reprisal discrimination, and the agency
failed to meet its burden, the AJ erred in finding no discrimination.
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).
Here, we find that the AJ's finding of no discrimination is supported
by substantial evidence of record. Further, we concur with the
AJ's finding that complainant established a prima facie case of
reprisal discrimination, and that the agency articulated legitimate,
nondiscriminatory reasons for its actions that complainant failed to
show were pretextual. Although complainant contends on appeal that the
selecting official and interview panelists failed to provide clear and
specific reasons for not selecting her for any of the vacant positions
at issue, we find that the evidence of record fails to support this
assertion. In so finding, we note that the AJ specifically addressed this
argument in her decision, finding that the selecting official articulated
legitimate, nondiscriminatory reasons for not selecting complainant, and
also provided complainant with "a number of suggestions she could employ
to assist her in getting selected the next time." (AJ Decision, 22).
Accordingly, we discern no basis to disturb the AJ's decision, and the
agency's final order is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 14, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120063474
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063474