01A34504_r
11-19-2003
Eileen R. Johnson, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.
Eileen R. Johnson v. Department of the Army
01A34504
November 19, 2003
.
Eileen R. Johnson,
Complainant,
v.
R. L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A34504
Agency Nos. AWGUFO0003A0050 & AWGYFO0004A0090
Hearing Nos. 270-A1-9053X & 270-A1-9054X
DECISION
Complainant filed an appeal with this Commission concerning her
complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. 2000e et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. 621 et seq. In the first complaint
(Agency No. AWGUFO0003A0050), complainant alleges discrimination on
the bases of race (Black), age (date of birth: February 16, 1956),
and reprisal for prior EEO activity, when on February 8, 2000, she was
not selected for one of two Contract Specialist, GS-1102-11, positions
in the agency's Contracting Division, Construction Services Branch.
In the second complaint (Agency No. AWGUFO0004A0090), complainant alleges
discrimination on the basis of reprisal for prior EEO activity when,
since February 8, 2000, she has been subjected to continuous intentional
harassment by her supervisor and team leader. Following a hearing, an
EEOC Administrative Judge (AJ) issued a decision on May 12, 2003, finding
that complainant had not been discriminated against. Specifically,
the AJ found that the agency presented a legitimate, nondiscriminatory
reason for its actions, which complainant failed to rebut. With regard
to complainant's harassment claim, the AJ also found that complainant's
claim, even if true, is not severe or pervasive enough to rise to the
level of harassment.
On June 11, 2003, the agency issued a decision finding no discrimination.
The agency fully implemented the AJ's decision. Thereafter, complainant
filed the instant appeal.
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 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that the agency articulated a legitimate, nondiscriminatory
reason for its actions. The Supervisory Contract Specialist, the
Selecting Official (SO), said that she initially selected selectee 1
for Position 1 because she had been a GS-13 at one time during her
career; she had a contracting officer's warrant (authority to sign
contracts for the U.S. Government); and she possessed experience as a
Procurement Contracting Officer. However, after selectee 1 declined,
SO commented that she selected selectee 2 for Position 1 because of her
developmental assignments and course work. SO indicated that selectee 2
had a Master's Degree in Public Administration. Additionally, SO reported
that, when the second position became vacant, the Assistant Chief of
the Contracting Division (Assistant Chief) told SO that he knew the
selectee for Position 2, who was "very, very sharp and who was a very
good employee." SO explained that the selectee for Position 2 had worked
for the Assistant Chief when he was assigned to the agency's Vicksburg
Office. SO said that she then asked the selectee for Position 2 if she
was interested in a lateral reassignment to the position. Complainant has
failed to show that her qualifications for the positions were plainly
superior to the selectees' qualifications or that the agency's action
was motivated by discrimination. The Commission also agrees with the
AJ that complainant's harassment claim is not sufficiently severe or
pervasive to rise to the level of harassment. Complainant has failed
to show, by a preponderance of the evidence, that she was discriminated
against on the bases of race, age, or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
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 19, 2003
__________________
Date