01981975
04-10-2000
Rita Doakes, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Rita Doakes v. Department of the Treasury
01981975
April 10, 2000
Rita Doakes, )
Complainant, )
) Appeal No. 01981975
v. ) Agency No. 97-2025
) Hearing No. 310-97-5221X
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (African American),
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> Complainant alleges she was discriminated against when: (1)
she was denied access to the Safety Office; (2) she was denied access
to her personal belongings in the Safety Office; and (3) on September
24 and September 25, 1996 she was told to return her key to the Safety
Office. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the agency's final decision (FAD).
ISSUE PRESENTED
The issue presented herein is whether the unavailability of a
complainant's witness (CW) at the hearing, constitutes error.
BACKGROUND
The record reveals that complainant, a Worker's Compensation Technician
(GS-7) in the Safety and Environmental Compliance Branch of the Bureau
of Engraving and Printing's Western Currency facility, filed a formal
EEO complaint with the agency on October 16, 1996, alleging that the
agency discriminated against her as referenced above. At the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). After a hearing, the AJ issued a recommended
decision (RD), finding no discrimination.
The record establishes that complainant intended to call CW at
the hearing on his discrimination complaint before the EEOC AJ.
The complainant argues that the AJ's decision refers, to some degree,
to statements made by CW. Complainant avers that she was deceived
by the agency's representation that it did not know where CW could
be located. At some point, the complainant became aware that CW was an
occasional visitor to the agency. Complainant indicates that on the day
of the hearing, the agency's representative stated that CW did not want
to appear. Complainant claims that she was prejudiced by the agency's
representations, in that she was unable to examine CW who she contends
is the "main player in the discrimination against the complainant."
The AJ concluded that complainant failed to establish a prima facie
case of reprisal and sex discrimination. The AJ also concluded that
complainant failed to establish a prima facie case of race discrimination
with respect to allegation #2 only.
The AJ found that complainant did establish a prima facie case of race
discrimination with respect to allegations #1 and #3. The AJ then
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions with respect to complainant's race claim, relative
to allegations #1 and #3. The AJ ultimately found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination. Consequently,
the AJ found that complainant failed to establish discrimination with
respect to any of her claims, on any of the proffered bases.
The agency's FAD implemented the AJ's RD. On appeal, complainant argues
that the unavailability of a witness CW caused the complainant grave harm.
Complainant further requests that the decision be reversed and that the
Commission enter a judgment on her behalf.
ANALYSIS AND FINDINGS
We note that the AJ has the authority to conduct hearings, including the
production of testimonial evidence. 64 Fed. Reg. 37,644, 37657 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.109(f)).
In regard to complainant's contention on appeal, we note that EEOC
Regulation 29 C.F.R. �1614.109 gives the AJ broad powers to regulate
the conduct of a hearing. The AJ has the authority to order the
attendance of witnesses, and in the absence of good cause shown, the
AJ may, inter alia, draw an adverse inference reflecting unfavorably
on the party refusing to provide for the attendance of the witness.
29 C.F.R. �1614.109(f)(3). Upon review of the authority of the AJ and
the facts of the instant appeal, we find no evidence of abuse of the
AJ's discretion in this regard.
We also find no evidence of bad faith on the part of the agency.
The Commission notes that under 64 Fed. Reg. 37,644, 37657 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. �1614.109(e)), the
regulations state only that "[a]gencies shall provide for the attendance
at a hearing of all employees approved as witnesses by an administrative
judge". Where, as here, the complainant is an unwilling former employee,
Commission precedent places no duty on the agency to produce an unwilling
witness, who is not a Federal employee, at an administrative hearing.
While complainant asserts that complainant was deceived by the agency,
we do not find evidence of bad faith. In so finding we note that
while CW may have visited the agency from time to time, as alleged by
the complainant, there is no evidence to indicate that the agency knew
where CW could be located.
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).
In the absence of a proffer of what the absent witness would testify to
and without a finding of bad faith on the part of the agency or abuse
of discretion on the part of the AJ, we find no reason to disturb the
findings of the AJ. Accordingly, 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 10, 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.