01974484
12-22-2000
Lori Fisher, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Lori Fisher v. Department of Justice
01974484
December 22, 2000
.
Lori Fisher,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 01974484
Agency No. P-94-8401
Hearing No. 170-95-8203X
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of sex (female) and reprisal (prior EEO activity), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). Complainant
alleges she was discriminated against on the above-stated bases when,
starting in September of 1993, she was not reinstated to a position with
the agency in any of four facilities.<2> For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was employed
as a GS-5 Inmate Systems Officer at the agency's Federal Correctional
Institution in Schuylkill, Pennsylvania. Complainant alleged that
in September of 1992, she was terminated by the agency during her
probationary period for having omitted and falsified information
during a pre-employment �integrity interview� conducted in 1991.
During that interview, complainant answered �No� when asked if she had
been excessively absent, tardy or abused leave, or had been involved
in �serious misconduct in former or current employment.� In August of
1992, complainant was informed that a background investigation by the
agency confirmed that she had received two oral reprimands while in her
former employment. Complainant was given the opportunity to provide
an explanation to provide additional information or explanation about
those reprimands, and responded to the agency by stating that she had
not lied during her interview. Nevertheless, the agency determined that
complainant had falsified and omitted information during the hiring
process, and thus the agency proposed that complainant be terminated
during probation effective in September of 1992.
Complainant was then informed that she was eligible to be considered
for reinstatement for positions at the GS-5 level after a three year
period, and was informed that reinstatement decisions would be based on
several factors, including prior work record, performance appraisals,
qualifications and availability of vacancies. In September of 1993,
complainant applied as a reinstatement eligible for a Secretary
position at the agency's Federal Prison Camp in Allenwood, Pennsylvania,
but that Vacancy Announcement was canceled. Complainant subsequently
requested to be reinstated to positions at three other agency facilities
(U.S. Penitentiary in Lewisburg, Pennsylvania; Federal Prison Penitentiary
in Lewisburg, Pennsylvania and the Low Security Correctional Institution
in Allenwood, Pennsylvania), but her requests were not granted at
any of the facilities she contacted. Believing she was a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint on February 10, 1994. At the conclusion of the
investigation, complainant received a copy of the investigative report
and requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Following a hearing, the AJ issued
a Recommended Decision (RD) finding no discrimination.
The AJ found that complainant failed to establish a prima facie case
of sex discrimination regarding her applications to be reinstated by
the four agency facilities, as she failed to demonstrate that her sex
was responsible for her failure to be reinstated. The AJ noted that
complainant did not demonstrate that she met the qualification standards
for employment due to her probationary termination in the last three
years, nor did she qualify for a waiver of the agency's qualification
standards, which are granted for hard-to-fill, professional positions.
Further, the AJ noted that several of the positions complainant applied
for were at levels higher than GS-5, and thus complainant did not qualify
for positions at a higher grade level. The AJ also found that complainant
failed to establish a prima facie case of reprisal discrimination
regarding her failure to be reinstated at any of the agency facilities,
as she did not show that she suffered an adverse action in that she was
not denied something that she should have been granted.
The AJ further found that even if complainant had established a prima
facie case of sex discrimination or reprisal, the agency articulated
legitimate, nondiscriminatory reasons for the denial of complainant's
reinstatement requests, namely, that although complainant was eligible
for reinstatement consideration, her requests were denied as she either:
(1) failed to met the employability standards contained in the agency's
guidelines due to her probationary dismissal in the last three years;
(2) sought reinstatement to positions at grade levels above her previous
grade of GS-5 and was deemed not qualified; (3) there were no relevant
vacancies at the facilities she sought reinstatement to and the agency
had a policy of not considering applications submitted at such times;
or (4) did not seek employment in a hard-to-fill professional position
for which a waiver of the standards would be requested. The AJ further
found that no evidence was introduced to show that more likely than
not, the explanation by the agency was a pretext for discrimination
or reprisal. The agency's FAD accepted the AJ's recommendations.
On appeal, complainant contends that she did not falsify information
during her integrity interview and was terminated for reporting incidents
of sexual harassment to the agency.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We find that complainant
failed to present evidence that any of the agency's actions were taken in
retaliation for her prior EEO activity or were motivated by discriminatory
animus toward complainant's sex. We agree with the AJ's finding that
complainant failed to establish that the agency's articulated reasons
why she was not reinstated were more likely than not a pretext for
discrimination or retaliation. The record establishes that although
complainant was eligible for reinstatement for employment at an agency
facility after a three year period, her requests were denied as the agency
determined that she either failed to meet the acceptability guideline
standards for employment, applied for positions she was not qualified
for or for which there were no vacancies, or she did not apply for
positions for which a waiver to the agency's standards would be granted.
We thus discern no basis to disturb the AJ's decision. 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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
December 22, 2000
__________________
Date
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 We note that complainant claims in her appeal that she had been
discriminated against due to her sex (sexual harassment) when she
was terminated from the agency during probation in September of 1992.
The Administrative Judge noted that this allegation was not accepted
by the agency for investigation due to untimely EEO Counselor contact,
and thus the issue of sexual harassment was not made part of the hearing
record or considered in the Recommended Decision. The Commission agrees
with the Administrative Judge's finding that complainant's sexual
harassment claim relating to her termination was not properly before
him due to untimely EEO Counselor contact and the agency's subsequent
failure to accept that allegation for investigation. We note that the
evidence reflects that complainant was terminated on September 29, 1992,
and did not initiate contact with the agency's EEO Counselor regarding
the circumstances surrounding her termination until January 4, 1994,
well after the forty-five day time limit for initial counselor contact
set forth in 29 C.F.R. � 1614.105(a)(1).