0120091216
06-18-2009
Lillia Sharp, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Lillia Sharp,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091216
Agency No. ARCCAD06JUN02172
Hearing No. 451-2008-00027X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 17, 2008 final action 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
During the period at issue, complainant was employed as an Aircraft
Mechanical Parts Repairer, WG-9940-07 at the agency's Corpus Christi Army
Depot, Component Production Directorate, Transmission/Gearbox Division,
Rotorhead Work Center in Corpus Christi, Texas.
On August 1, 2006, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against her
on the bases of race (Hispanic), sex (female), age (44), and in reprisal
for prior EEO activity when1:
1. her supervisor told her "your husband makes lots of money, so you
don't need a promotion;" she was told "women don't belong in the shop;"
she was left out of shop meetings, she was not averaged in with her
co-workers in assigning overtime; her supervisor failed to control the
continuous harassment from the work leader; her time in the restroom is
monitored by the work leader; she was charged with 20 hours of absent
without leave during the time period August 24, 2006 to August 28, 2008;
she was not allowed to go home when she became ill, causing her to pass
out and injure herself and
2. on August 18, 2006, she was suspended for three days.
At the conclusion of the investigation, complainant timely requested a
hearing and the AJ held a hearing by videoconference on November 3, 2008.
The AJ appeared from San Antonio, Texas, while the parties and witnesses
were located in Corpus, Christi, Texas. The AJ issued a bench decision
on November 3, 2008, finding no discrimination.
In his decision, the AJ found that the agency witnesses provided
credible testimony while complainant's testimony was often evasive and
inconsistent. The AJ further determined that complainant did not show
by a preponderance of the evidence that she was discriminated against on
the bases of sex and retaliation. Specifically, the AJ determined that a
review of the record indicates that complainant had time and attendance
problems. Furthermore, the AJ found that the alleged harassment was
insufficiently severe or pervasive to create a hostile environment.
The agency implemented the AJ's decision in a final action dated December
17, 2008. It is this decision that is the subject of the instant appeal.
As an initial matter, we again note that the AJ chose to conduct this
hearing by videoconference. In Allen v. United States Postal Service,
EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently
determined that videoconferencing provides an acceptable alternative
to an in-person hearing. The Commission identified a number of factors
that an Administrative Judge should consider before electing to proceed
via videoconferencing, including: the availability and proximity to the
participants of the videoconferencing facilities; the adequacy of the
available videoconferencing facilities, to include any technological
issues; the cost to the respondent agency (if any) balanced against
the savings in travel time for all parties, and the AJ; the number of
expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of
objection to the use of video-conferencing by either party. Under these
circumstances, the Commission concludes that the AJ did not abuse his
discretion by electing to hold a video-conference hearing.
On appeal, complainant contends that the AJ's decision finding no
discrimination was "arbitrary and capricious." Specifically, complainant
states that the AJ "failed to consider key evidence; failed to apply
the proper law and rendered a decision contrary to the greater weight
of credible evidence."
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.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's findings on the merits. The Commission determines that, contrary
to complainant's assertion that the AJ's findings were arbitrary and
capricious, the AJ made explicit credibility findings and presented a
comprehensive and reasoned analysis to support his findings. Therefore,
after a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final action,
because the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 18, 2009
__________________
Date
1 The record reflects that during the pre-hearing conference, complainant
withdrew race and age as bases.
??
??
??
??
2
0120091216
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091216
5
0120091216