Christina Sparks, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 26, 2007
0120063907 (E.E.O.C. Nov. 26, 2007)

0120063907

11-26-2007

Christina Sparks, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Christina Sparks,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01200639071

Agency No. 9V1M04525F06

Hearing No. 310-2006-00014X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's May 18, 2006 final order concerning her

equal employment opportunity (EEO) complaint alleging employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

Complainant alleged that the agency harassed and discriminated against

her on the bases of disability and in reprisal for prior protected EEO

activity (arising under an EEO statute that was unspecified in the record)

when management:

1. Subjected her to a continual hostile work environment from April 5,

2004 through September 5, 2004;

2. Issued her an out-of-cycle performance appraisal, on October 5,

2004, which rated her as below average, needing improvement and with

low appraisal factor scores, and an overall performance rating of

unacceptable; and

3. Denied her the opportunity to work overtime from August 25, 2004

through October 22, 2004.

Complainant timely requested a hearing before an EEOC Administrative

Judge (AJ). The hearing was held on March 21, 2006 and the AJ issued

her decision on April 6, 2006. The AJ concluded that complainant had

failed to establish by a preponderance of the evidence that the unlawful

discrimination occurred. The agency adopted the AJ's decision as it

own in its final order.

Pursuant to 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 Brd., 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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held. On the

other hand, the AJ's credibility determinations based on the demeanor

or tone of voice of the witnesses will be accepted unless documents or

other objective evidence so contradicts the testimony, or the testimony

so lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (Nov. 9, 1999).

Upon review of the record as well as the hearing transcript, we find that

substantial evidence supports the AJ's findings. Even if we assume

that complainant is an individual with a disability and presented

prima facie claims of discrimination and retaliation, we still find

that she has not rebutted the agency's proffered non-discriminatory

explanations for its actions. We further find that complainant has

presented no new, persuasive arguments on appeal. In fact, we note that

she presented no statement on appeal. We remind complainant that it is

her burden to provide us with substantive proof that the explanations

the agency provided to justify its actions were merely pretextual and

that management acted the way it did because complainant is an individual

with a disability and engaged in protected activity. As complainant has

not met this burden, she cannot succeed on her claims. Similarly with

regard to her harassment claim, we find that even if the alleged conduct

was severe and pervasive, the claim fails because complainant has not

shown that management's actions were motivated by discriminatory animus.

See Oakley v. United States Postal Serv., EEOC Appeal No. 01982923

(Sept. 21, 2000) (applying Harris v. Forklift Systems, Inc., 510 U.S. 17

(1993)).2

Accordingly, 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.

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

November 26, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 Assuming complainant's allegations of harassment are true, her claim

does not pass the harassment test set forth in Harris v. Forklift Systems,

Inc., 510 U.S. 17 (1993). Complainant must prove that: (1) she was

subjected to harassment that was sufficiently severe or pervasive to alter

the terms or conditions of employment and create an abusive or hostile

work environment, and (2) the harassment was based on membership in a

protected class. See Enforcement Guidance on Harris v. Forklift Systems,

Inc. at 3, 6 (Mar. 8, 1994). Even, as mentioned above, assuming criterion

(1) is met, she has failed to satisfy criterion (2) because she has not

shown that management's actions were prompted by a desire to retaliate

against her or because complainant is an individual with a disability.

See Oakley v. United States Postal Serv., EEOC Appeal No. 01982923

(Sept. 21, 2000).

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0120063907

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120063907