01974832
01-15-1999
Maryam Matin, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Maryam Matin v. Department of the Army
01974832
January 15, 1999
Maryam Matin, ) Appeal No. 01974832
Appellant, ) Agency No. BSEYFO9603G0100
v. ) Hearing No. 370-97-X2226
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning her 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. See EEOC Order No. 960.001.
In her complaint, appellant alleged that she was discriminated against
based on her sex and reprisal for prior EEO activity when (a) she was
not selected for one of two 120-day temporary positions as Training
Coordinator, GS-11; (b) her supervisor allegedly invaded her personal
space and got too close to her in order to intimidate her on December
18, 1995; and (c) her supervisor allegedly made false accusations about
tardiness on December 19, 1995.
At the time in question, appellant was a Language Instructor, GS-9, and
had filed a prior EEO complaint in July 1993. Appellant timely sought
EEO counseling and filed her instant EEO complaint, which was accepted
and investigated by the agency. Thereafter, appellant timely requested
a hearing before an EEOC Administrative Judge ("AJ"). After a hearing,
the AJ issued a recommended decision ("RD") finding no discrimination.
Regarding allegation (a), the record reflects that, in January 1996,
the Dean of the East European School II instituted a request for two
temporary Training Instructors. However, after being informed that
the Provost was discontinuing a course development program, the Dean
canceled the request and laterally transferred two Course Developers,
GS-11, whose program had been discontinued, into the temporary Training
Instructor positions. Even assuming that appellant could establish a
prima facie case of sex discrimination and retaliation with respect to
the cancellation of the request and the lateral transfer of the Course
Developers, the AJ found that she failed to establish that the legitimate
nondiscriminatory reasons articulated by the agency for its actions
were pretextual. In this regard, the AJ noted that while the record
indicated that appellant and her supervisor had a strained relationship
(as discussed below), her supervisor was not involved in this action,
and appellant had been selected for five other temporary GS-11 positions
between May 1991 and September 1994.
The AJ noted that allegations (b) and (c) constituted a claim that
appellant had been subjected to discriminatory harassment by her
supervisor. With respect to allegation (b), appellant asserted that
while she and her supervisor were discussing a matter in his office,
he moved from behind his desk to where she was standing, coming
so close that she backed away and left the room. The supervisor
denied moving from behind his desk at any time during the discussion.
His version of the event was supported by a secretary, who testified
that she could see the supervisor from her adjacent office, and at no
time observed him physically approach appellant or raise his voice.
A Team Coordinator who was present at appellant's request for part of
the meeting also testified that the supervisor stayed behind his desk.
The AJ found no reason to question the reliability or credibility of
the secretary or the Team Coordinator and, consequently, held that the
supervisor did not invade appellant's space by getting too close to her.
As to allegation (c), the supervisor maintained that he knew appellant
was tardy on December 18, 1995, because she was scheduled to arrive
at 8:15, but a meeting had to be postponed until her arrival at 9:20.
He stated that he knew she was late on December 19, 1995, because he was
in her office using a computer located there when she arrived at 9:10.
The supervisor also maintained that later that day, he observed appellant
in her car in the parking lot at 10:50 and again at 12:20, whereas her
scheduled lunch period was only to be 30 minutes long. After reviewing
the testimony, the AJ held that the supervisor's "statements about
[appellant's] tardiness were essentially true statements rather than
false accusations." RD at 16. Accordingly, the AJ found that appellant
had not been subjected to discriminatory harassment.
The agency adopted the RD in its FAD. Appellant timely appeals,
and argues that: she was disadvantaged by not having an attorney;
the AJ was unfair in her rulings which included disallowing certain of
appellant's requested witnesses, upholding objections that certain of
her proffered testimony was irrelevant and ruling that certain of her
questions were argumentative; the supervisor committed perjury; that
the hearing transcript contains unspecified errors; and that she was
not selected for certain positions in September 1996.
After a thorough review of the record, the Commission finds that the
RD adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission is not persuaded that
the AJ abused her discretion in her rulings on the relevancy of certain
witnesses or proferred testimony. The Commission notes that it generally
will not disturb the credibility determinations of an AJ when, as here,
such determinations are based on the AJ's observations of the demeanor
of the witnesses. 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). Accordingly, the Commission
discerns no basis to disturb the AJ's finding that appellant failed
to establish that she was subject to the discrimination or retaliation
alleged and it is, therefore, the decision of the Commission to AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
Jan 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations