0120061318
11-02-2006
Wendy Olson, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Transportation Security Agency), Agency.
Wendy Olson,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Transportation Security Agency),
Agency.
Appeal No. 01200613181
Agency No. 051062
Hearing No. 160-2004-00510X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 5, 2005 final order in the above-entitled
matter. Complainant alleged that the agency discriminated against her on
the bases of sex (female) and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when, on June 18, 2003,
she was terminated during her probationary period from the position
of Screener, SV-0090D, at the Chautauqua County Airport in Jamestown,
New York.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
____11-02-06______________
Date
1 Due to a new data system, your case has been redisignated with the
above-referenced appeal number.
2 We note that the Administrative Judge (AJ) held a hearing in the
instant case on June 16 and 17, 2005. At the conclusion of complainant's
presentation of her case, the agency moved for a directed verdict. The AJ
then granted the Agency's motion for a directed verdict and considered
the evidence presented by complainant at the hearing in finding that
she had not been discriminated against when she was terminated by the
agency during her probationary period. The Commission notes that there
is no jury trial involved in the adjudication of an EEO complaint at
the administrative level, and thus there is no provision for directed
verdicts. However, we find in the instant case that the AJ's decision
relies on the relevant facts and is well grounded in the laws under
which complainant filed her complaint. See Arnold v. Dept. of the Army,
EEOC Appeal No. 01A33060 (April 5, 2004).
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01A61318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061318