01a44365
10-18-2004
Kathleen Y. Jordan, Complainant, v. Rod Paige, Secretary of Education, Department of Education Agency.
Kathleen Y. Jordan v. Department of Education
01A44365
October 18, 2004
Kathleen Y. Jordan,
Complainant,
v.
Rod Paige,
Secretary of Education,
Department of Education
Agency.
Appeal No. 01A44365
Agency No. ED-2002-12-00
Hearing No. 220-A3-5046X
DECISION
Kathleen Y. Jordan (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 the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 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 denying complainant relief.
Complainant, an Equal Opportunity Specialist at the Department of
Education's (Agency) Office of Civil Rights (OCR), filed a formal EEO
complaint on April 11, 2002, alleging that the agency had discriminated
against her on the basis of reprisal for prior EEO activity when on
December 21, 2001 she was denied a career ladder promotion to an equal
opportunity specialist, GS-360-12, position.
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 did not establish a prima facie case
of discrimination based on reprisal because she did not show that her
initiation of the Agency's Internal Dispute Resolution process (IDR) in
2000 constituted prior EEO activity, nor that her supervisor was aware
that her IDR activity was an EEO matter. The AJ found that the Agency's
IDR process is not limited to resolving EEO concerns, but addresses labor
disputes in general, and that the complainant did not present evidence
to demonstrate that she intended to file an EEO complaint.
The AJ further concluded that the Agency articulated legitimate,
nondiscriminatory reasons for not promoting complainant, namely that she
had not demonstrated the ability and readiness to perform at the GS-12
journeyman level. Complainant's supervisor saw need for improvement in
complainant's writing ability, ability to identify allegations accurately,
and in her knowledge of the OCR program. The AJ also concluded that
complainant failed to establish that the agency's articulated reasons
were a pretext to mask unlawful retaliation, noting that several employees
when at a similarly stage in their career to complainant were also denied
promotion to GS-12.
The agency's final order implemented the AJ's decision. From that order
complainant brings the instant appeal. Complainant's arguments on appeal
will not be considered because her appeal brief was not timely filed.
The Agency requests that the Commission affirm the AJ's decision.
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 finding of no discrimination is supported by substantial evidence
in the record.
A complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in a protected activity; (2) the agency was
aware of the protected activity; (3) she was subsequently subjected
to adverse treatment by the agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Burbey v. Dept. of
Homeland Security, EEOC Appeal No. 01A43103 (Sept. 14, 2004) (citing
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F.Supp. 318, 324 (D. Mass. 1976)).
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct.<1> See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Substantial evidence supports the AJ's findings that complainant's
supervisor had several non-discriminatory reasons to not promote
complainant and that complainant produced insufficient evidence to show
those reasons were pretext. The Agency's non-discriminatory reasons
for denying complainant promotion included complainant's inability to
write effectively, her inability to accurately identify allegations
in a complaint, and her insufficient knowledge of the OCR program.
Complainant's supervisor did not consider her ready to assume the
independence of a GS-12 journeyman. Complainant testified that she was,
in fact, capable of working independently but that her supervisor was a
micro-manager. She testified that her supervisor identified allegations
prior to assigning a case. Complainant also produced evidence of her
excellent interpersonal skills. The AJ, however, did not find her
testimony convincing enough to rebut the Agency's proffered reasons and
prove that they were, more likely than not, a mask for discriminatory
intent. The record contains substantial evidence to support the AJ's
finding.
The Commission, therefore, affirms the AJ's decision and finds that
complainant failed to prove that her non-promotion was the result of
discrimination based on reprisal.
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
__October 18, 2004________________
Date
1While the Commission affirms the AJ's decision, the Commission notes
that the AJ erred in concluding that complainant did not establish
a prima facie case of reprisal. Retaliation is prohibited when an
employee �explicitly or implicitly communicates to his or her employer
or other covered entity a belief that its activity constitutes a form of
employment discrimination that is covered by any of the statutes enforced
by the EEOC.� EEOC Compliance Manual, No. 915.003, 8-3 to 8-4 (May 20,
1998). Protected activity includes actions in opposition to employment
discrimination other than contact with an EEO counselor. Id.; see also
Beverage v. Dept. of the Army, EEOC Appeal No. 01983070 (March 4, 1999)
(reversing the agency's decision to dismiss a claim of retaliation
because the prior EEO activity was not a formal EEO complaint).
The record reveals that in July of 2000 complainant filed a grievance for
non-promotion with the Agency's IDR Center, alleging that her supervisor
failed to promote her from GS-9 to GS-11 because of complainant's medical
condition, a blood disease causing low blood plataletes. Complainant
contacted the Agency's IDR Center pursuant to her union's collective
bargaining agreement, which states that claims of discrimination must be
mediated through IDR prior to filing a formal EEO complaint. Complainant's
participation in IDR was, therefore, in opposition to what she reasonably
believed to be illegal discrimination based on disability and constitutes
protected EEO activity. EEOC Compliance Manual, No. 915.003, supra;
Beverage, supra.
The AJ also erred in concluding that the Agency was not aware of
complainant's prior EEO activity. Complainant's supervisor admitted to
having taken part in complainant's IDR mediation on October 13, 2000 and
did not dispute the substance of the mediation or complainant's grievance.
The AJ's conclusion was based on the supervisor's assertion that she was
not aware that an IDR mediation constitutes EEO activity. This assertion
is highly dubious considering she is a supervisor of EEO specialists.
Regardless, ignorance of EEO law does not excuse retaliation against
protected activity so long as her supervisor was aware of the activity
itself.
Finally, sufficient nexus exists between the prior EEO activity and the
subsequent negative employment action, non-promotion, that is the subject
of the instant complaint to establish a prima facie case of reprisal.
The IDR mediation took place on October 13, 2000. Complainant was denied
promotion on December 21, 2001. Complainant's supervisor was the same
person in both instances and the record reveals that ongoing friction
existed between complainant and her supervisor.