01A33193
04-08-2004
Faith L. Eudy, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Faith L. Eudy v. Department of the Air Force
01A33193
April 8, 2004
.
Faith L. Eudy,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A33193
Agency No. 5K0M0122
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged that the agency had discriminated against her and
subjected her to a hostile work environment on the basis of sex (female),
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., when between May and June 2001,
the Military Personnel Flight hastened the selection process for the
manning position so as to exclude her from consideration for a Military
Personnel Specialist, GS-205-07/09.<1>
On appeal, complainant's sole contention is that the investigation
was inadequate because the investigator failed to interview some of
complainant's proposed witnesses, and because the investigator asked
leading questions of one witness. Consequently, complainant asks that
the Commission remand the case for a supplemental investigation.
The requirement that an agency investigate complaints of discrimination
is codified at 29 C.F.R. � 1614.108. This regulation requires the agency
to develop an impartial and appropriate factual record upon which to
make findings on the claim or claims raised in the complaint. Id.
� 1614.108(a). "An appropriate factual record is one that allows a
reasonable fact finder to draw conclusions as to whether discrimination
occurred." Id. The investigator is required to conduct a thorough
investigation�identifying and obtaining all relevant evidence from all
sources regardless of how it may affect the outcome. EEOC Management
Directive 110, p. 6-8 (Nov. 9, 1999). While this requirement does not
compel the investigator to engage in irrelevant and superfluous inquiry,
it does require that the investigator exhaust those sources of information
likely to support the positions of complainant and the agency. Id.
In this case, the investigator stated that some of complainant's witnesses
were unavailable for testimony �due to active duty call ups, training
and transfers.� Record of Investigation, at 158. Complainant contends,
however, that two of the witnesses were in fact available to provide
testimony. Complainant has failed to submit evidence on appeal to
substantiate the claim that the two witnesses were in fact, available.
Complainant has also failed to present any specific arguments regarding
how the information that would be obtained from these witnesses might
affect the outcome in this case. We find that the investigative file
contains sufficient information upon which to determine whether or
not the complained-of agency action was the result of an unlawful
discriminatory motive.
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 agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred as to the incident in question.
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
April 8, 2004
__________________
Date
1 Complainant initially raised additional incidents of alleged
discrimination in her complaint, however, the agency dismissed them, one
for failure to state a claim, and the other for untimeliness. Complainant
does not dispute the dismissal of either of those issues on appeal,
therefore, the instant analysis will be limited to the single challenged
action which involves the Military Personnel Specialist position.