01975622
10-27-1999
Marie Hughes, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Marie Hughes, )
Appellant, )
) Appeal No. 01975622
v. ) Agency No. BRESFO9504F0380
) Hearing No. 320-96-8239X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision
(FAD) concerning her Equal Employment Opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, 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. On appeal, appellant alleges that she was
discriminated against and harassed on the bases of race (Black),
age (52 years) and in reprisal for prior EEO activity. The alleged
discrimination included a delayed performance appraisal, counseling,
letters of guidance, a non-selection and unspecified acts of harassment.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a Secretary at the agency's Fitzsimons
Army Medical Center in Aurora, Colorado, filed a formal EEO complaint
with the agency on June 16, 1995, alleging discrimination as referenced
above. At the conclusion of the investigation, appellant requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a Recommended Decision (RD) finding no discrimination.
The agency's FAD adopted the AJ's RD.
While the AJ found that appellant established prima facie cases of race,
age and reprisal discrimination, he concluded that appellant did not
prove that the agency's explanations for its actions were a pretext to
mask unlawful discrimination. In reaching this conclusion, the AJ found
that appellant was not selected for the Administrative Management position
in favor of a superior candidate. The AJ also found that appellant's
performance appraisal was delayed for administrative personnel reasons.
The AJ further found that the counseling and letters of guidance
were issued as a result of appellant's performance. Finally, the AJ
concluded that appellant failed to prove that the alleged harassment was
sufficiently severe or pervasive to alter the conditions of appellant's
employment and create an abusive working environment. Moreover, the AJ
noted that appellant's behavior was unprofessional and undermined both
the morale and the efficiency of the office.
On appeal, appellant offers a forty-five page brief in which she presents
neither credible nor consistent evidence that any of the agency's actions
were in retaliation for her prior EEO activity or were motivated by
discriminatory animus toward her race or age. The harassment of which
appellant complains appears to stem from appellant's resentment toward
the employee who was selected for the Administrative Management position
rather than from a pattern of offensive conduct on the part of the agency.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the AJ's
findings of no discrimination which were based on a detailed assessment
of the record and the credibility of the witnesses. In general, the
Commission will not disturb the credibility determination of an AJ.
Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996); Willis v. Department of the Treasury, EEOC Request
No. 05900589 (July 26, 1990). Therefore, after a careful review of
the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
October 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations