01971156
05-22-2000
Patricia A. Phelps, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Patricia A. Phelps v. Department of the Army
01971156
May 22, 2000
Patricia A. Phelps,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01971156
Agency Nos. 93-11-0039
94-08-0084
Hearing Nos. 100-94-7750X
100-95-7238X
DECISION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning her claims that she was discriminated against in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> In complaint 1 (Agency No. 93-11-0039), complainant
alleged that she was discriminated against on the basis of race
(African-American), when: (claim 1) as the result of an audit her
position was reclassified and downgraded; (claim 2) she was unable
to obtain a copy of a written classification evaluation; and (claim 3)
she was allegedly harassed and treated differently than White coworkers.
In complaint 2 (Agency No. 94-08-0084), complainant alleged that she was
discriminated against on the basis of reprisal (prior EEO activity) when
(claim 4) the alleged discriminating management official discussed the
first complaint with witnesses prior to the investigative fact-finding
conference. The appeal is accepted in accordance with 64 Fed. Reg. 37,644,
37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405). For the reasons
that follow, the FAD is AFFIRMED.
At the time of the alleged discriminatory events, complainant was
employed by the agency as a GS-13 Transition Policy Analyst who had
been downgraded to a GS-12 Transition Policy Analyst. Believing that
she was discriminated against as referenced above, complainant sought
EEO counseling and filed formal EEO complaints. Thereafter, the agency
investigated the complaints and complied with all of our procedural
and regulatory prerequisites. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). The complaints were consolidated for the hearing, which was
held on December 14, 1995, December 15, 1995, and January 29, 1996.
At the conclusion of the hearing, the AJ issued a Recommended Decision
(RD) finding no discrimination. With respect to claims 1 and 2,
the AJ concluded that the complainant established a prima facie
case of race discrimination but failed to show that the agency's
legitimate nondiscriminatory reasons for its actions were pretextual.
Regarding the remaining claims, the AJ concluded that the complainant
failed to establish a prima facie case of race discrimination (claim 3)
and failed to establish a prima facie case of reprisal discrimination
(claim 4). Thereafter, the agency issued a FAD, dated October 15,
1996, adopting the AJ's RD. It is from this agency decision that
complainant now appeals. On appeal, complainant asserts, inter alia,
that the AJ: failed to properly weigh the evidence presented; failed to
accurately apply legal precedent; and improperly narrowed the reasons
the agency presented for its actions. In particular, complainant argues
that the responsible management official's (complainant's second level
supervisor or S2) decision not to file a "reclama" against the downgrade
of complainant's position or to more fully investigate ways in which to
maintain complainant's GS-13 grade, was in stark contrast to her actions
on behalf of White employees.
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
Administrative Judge 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 which will be upheld
if supported by substantial evidence. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The investigative record and the evidence presented supports the AJ's
conclusions. The agency presented substantial evidence to show that
the audit in question resulted from a random on-site review of a number
of GS-13 through GS-15 positions and that S2 had no input on the audit.
Moreover, there was no showing that any action or inaction on the part
of S2 was the result of discriminatory animus. While testimony was
presented to show that a detailed classification evaluation for the
position should have accompanied the audit, the agency only created
a "case listing" representing its findings concerning the proper
salary grade for complainant's position. There was no showing that
the agency's failure to create a detailed evaluation resulted from
discriminatory animus or that the agency discriminatorily withheld any
written classification evaluation. Furthermore, the record does not
support complainant's claim that she was subjected to ongoing harassment
and disparate treatment, or that any discussion of the circumstances of
complaint 1 amounted to an adverse employment action based on reprisal.
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 recommendation of no discrimination. 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 agency's final decision.
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:
May 22, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.