0520110638
11-29-2012
Carole Lieber, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Information Systems Agency), Agency.
Carole Lieber,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.
Request No. 0520110638
Appeal No. 0120090227
Hearing No. 100-2005-00327X
Agency No. DISA-HQ-04-003
DENIAL
Complainant timely requested reconsideration of the decision in Carole Lieber v. Department of Defense, EEOC Appeal No. 0120090227 (July 7, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The previous decision affirmed the Agency's final order which implemented the Administrative Judge's (AJ) decision, following a hearing, finding that Complainant had not shown that she had been discriminated against on the bases of her race, color, sex or in reprisal for prior protected EEO activity when she was discriminated against and subjected to a hostile work environment. Complainant had alleged that she had been discriminated against when she was detailed out of her position as Equal Employment Manager (EEM), subsequently reassigned to another position, not given a performance award, excluded from meetings, not assigned work, denied training, and had her position abolished.
The previous decision affirmed the AJ's determination that several of Complainant's claims were untimely raised with an EEO Counselor, because those claims were discrete acts and Complainant had reasonably suspected discrimination long before her EEO Counselor contact. It found that the AJ correctly considered the evidence in support of those claims only as background evidence to Complainant's timely claims. Most notably, the previous decision found that Complainant had put forth direct evidence of discrimination regarding her claim that she was transferred out of the EEM position due to her race and color, but that this claim was untimely raised and therefore considered only as background evidence in support of her harassment claim.
The previous decision also found that there was substantial evidence in the record to support the AJ's finding that there was no discrimination with respect to the timely raised claims. The decision addressed Complainant's arguments in support of her initial appeal, and found that Complainant had not persuasively shown that the Agency's articulated reasons were pretext for discrimination. It specifically found that Complainant had not shown that the direct evidence of discrimination which had been established regarding the actions of Complainant's first-level supervisor for her untimely claim proved that her second-level supervisor or the Deputy Director had acted for discriminatory reasons with respect to the timely claims for which they were the responsible management officials. It concluded that Complainant had not shown that she was subjected to disparate treatment or harassment on any of her claimed bases.
In her request for reconsideration, Complainant argued that the previous decision involved a clearly erroneous interpretation of fact or law in that it did not give enough weight to the direct evidence of discrimination when evaluating the totality of Complainant's harassment claim, that under the "cat's paw" theory of discrimination, the discriminatory motivation of the first-level supervisor should have been imputed to the second-level supervisor, and that the direct evidence of discrimination for her untimely claim should establish liability on the part of the Agency for the remaining claims. In its response in opposition to Complainant's reconsideration request, the Agency argued that the Commission should deny Complainant's request for reconsideration.
We find that Complainant has not shown that the previous decision involved a clearly erroneous interpretation of material fact or law. We find that the correct weight was accorded to the consideration of the direct evidence that Complainant's first-level supervisor had made biased statements regarding his selection of Complainant as the EEM, and his subsequent decision to detail her to another position, claims which were untimely raised with the EEO Counselor. We find that the "cat's paw" theory, although not discussed as such in the previous decision, was applied to the facts of the complaint, and it was determined that the discriminatory animus of the first-level supervisor should not be imputed to the other decision makers.1 We also find that the direct evidence in support of the untimely claim is not sufficient to find liability for the timely claims, and Complainant has not shown that the decision was clearly erroneous in any of its conclusions.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120090227 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
November 29, 2012
Date
1 See Appeal No. 0120090227, at p. 7, para. 5.
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0520110638
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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