01a45967_r
02-03-2006
Jaewon Lipper, Complainant, v. Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Agency.
Jaewon Lipper v. Broadcasting Board of Governors
01A45967
February 3, 2006
.
Jaewon Lipper,
Complainant,
v.
Kenneth Y. Tomlinson,
Chairman,
Broadcasting Board of Governors,
Agency.
Appeal No. 01A45967
Agency No. OCR-02-10
Hearing No. 100-A2-7916X
DECISION
Complainant filed an appeal with this Commission from the August 5,
2004 agency decision which implemented the July 28, 2004 decision of
an EEOC Administrative Judge (AJ) finding no discrimination.
Complainant, an International Radio Broadcaster (IRB) within the agency's
Korean Service, alleged that the agency discriminated against her on
the bases of sex (female) and in reprisal for prior EEO activity when:
1. On December 14, 2001, she was given a letter of admonishment.
2. On January 29, 2002, complainant was notified of her termination
from her position as an IRB (Korean), GS-1001-11, effective January 28,
2002, because of her conduct and job performance.
3. From July 2001 to January 28, 2002, complainant was subjected to
harassment.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an AJ. Following a
two-day hearing, the AJ issued his decision finding no discrimination.
The record reveals that complainant began working for the agency as a
purchase order vendor (POV).<1> At the time complainant initiated EEO
counseling in the instant complaint, complainant was working for the
agency as a GS-11 IRB in the agency's Korean Service, a position which
she obtained through a June 28, 2001 settlement agreement resolving
a prior EEO claim. The record also reveals that the IRB position
which complainant held was contingent upon complainant's successful
completion of a one-year probationary period which began on May 6, 2001.
Complainant was terminated before the end of her probationary period.
The record contains a letter of admonishment which was issued in
December 2001, and which reflects that the purpose for its issuance was
that complainant missed an air show on December 4, 2001. The record
reveals that complainant did not show up for an air show for which she
was scheduled because she had overslept. The letter of admonishment was
issued by complainant's supervisor, the Chief of the Korean Service.
Regarding the letter of admonishment, the AJ noted that the agency
issued the letter of admonishment when complainant did not work as
scheduled on December 4, 2001, and when she sent an electronic mail
to her supervisor, the Chief of the Korean Service, questioning his
method of supervision. The AJ stated that the agency determined that by
these actions, complainant was delinquent in her responsibilities and
showed a lack of respect toward her supervisors. The AJ stated that
complainant argued that the agency's reasons for issuance of the letter
of admonishment were pretextual because a male employee without prior
EEO activity missed show preparations during the same month and did not
receive a letter of admonishment. The AJ found that complainant and the
male employee differed in status, noting that the male employee was not
a comparable, similarly situated employee because the male employee was
not a probationary employee and complainant was a probationary employee.
The AJ stated that a comparable employee must be similarly situated in
all relevant aspects of employment, indicating that probationary status
was a relevant aspect of employment because permanent placement in the
agency depended upon satisfactory completion of a probationary period.
The AJ further found that because complainant failed to prove she was
similarly situated to the male non-probationary employee, complainant
had failed to demonstrate that the agency's reason for the letter of
admonishment was a pretext for a discriminatory motive.<2>
Regarding complainant's termination, the AJ noted that the agency's reason
for complainant's termination was excessive telephone use, absenteeism,
editing mistakes, the December 4, 2001 absence, and excessive electronic
mail messages regarding the web team and reclassification. The AJ found
that although complainant had identified employees who had allegedly
committed egregious infractions, none of the identified employees were
probationary and therefore not similarly situated to complainant, noting
that different disciplinary processes were followed for probationary
and non-probationary employees. The AJ also found that complainant
failed to prove that the agency's motive for termination was a pretext
for discrimination.
On appeal, complainant states that she is not appealing the AJ's findings
regarding sex as a basis of discrimination or her claim of a hostile work
environment. Accordingly, only claims 1 and 2 and the basis of reprisal
will be considered herein.<3> Complainant argues that the AJ made legal
determinations regarding reprisal discrimination that were erroneous.
Complainant also argues that because she had produced direct evidence of
discrimination, the AJ's application of a standard set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) was error.
Where the agency denies that its decisions were motivated by
discrimination and there is no direct evidence of discrimination,
the Commission applies the burden-shifting method of proof set forth
in McDonnell Douglas, Id.; see Hochstadt v. Worcestor Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases).
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden, the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. Id. at 802;
see also Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
This means that the complainant must present a body of evidence such that,
were it not rebutted, the trier of fact could conclude that unlawful
discrimination did occur. The burden then shifts to the agency to
articulate a legitimate, non-discriminatory explanation for its action.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In this regard, the agency need only produce evidence sufficient
"to allow the trier of fact rationally to conclude" that the agency's
action was not based on unlawful discrimination. Id. at 257. Once the
agency has articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action, or
merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511 (1993).
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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. Additionally, the Commission notes that an
AJ's credibility determination based on the demeanor of a witness or on
the tone of voice of a witness 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. (November 9, 1999).
Further, an AJ's credibility determinations are entitled to deference
due to the AJ's first-hand knowledge through personal observation of the
demeanor and conduct of the witness at the hearing. Grant v. Department
of the Treasury, EEOC Appeal No. 01985972 (August 2, 2001).
Upon review, we find that complainant has provided evidence which
gives rise to an inference of discrimination. The record reflects that
complainant was issued a letter of admonishment and was terminated by
the agency. The record also reflects that complainant had participated in
prior EEO activity when she initiated contact with an EEO Counselor on May
9, 2001, concerning a nonselection as an IRB. Complainant's supervisor,
the Chief of the Korean Service, was named in the discrimination claim.
The record also reflects that complainant testified that on or about
June 8, 2001, after the Chief of the Korean Service met with the EEO
Counselor, the Chief of the Korean Service began criticizing her about
time spent away from her desk and excessive telephone use. The record
contains testimony from complainant and an audio technician which
reveals that other IRBs were late for shows or did not show up for shows.
Complainant testified that they were not disciplined. Complainant also
testified that prior to his June 2001 meeting with the EEO Counselor,
the Chief of the Korean Service had never before counseled complainant
or criticized her conduct or performance.
We find no direct evidence of discrimination. Complainant references
statements made by agency officials to an EEO Counselor and other
comments, but we find that these statements are insufficient to show that
the agency was retaliating against complainant or somehow had decided to
punish complainant for pursuing the EEO process. There is no indication
of bias or link to the admonishment or termination by the general
references to complainant being involved in the complaint process.
Therefore, the AJ's application of the McDonnell Douglas analysis
was proper. The AJ's finding of no discrimination for claims 1 and 2
is based on substantial evidence. The agency articulated legitimate,
nondiscriminatory reasons for issuing the letter of admonishment and
for terminating complainant's employment. Complainant has failed to
present evidence that more likely than not the agency's articulated
reasons for its actions, as found by the AJ, were mere pretext to mask
unlawful discrimination. Here, the record does not establish that
intentional discrimination was the reason for the agency's actions.
At all times the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant has failed to meet her burden.
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
February 3, 2006
__________________
Date
1The record reveals that POVs were contractors as opposed to IRBs who
were full-time employees, but that the POVs and IRBs had the same duties
and functions within the agency.
2The AJ found that much of the testimony of the Chief of the Korean
Service was contradictory and that frequently the Chief of the Korean
Service was not a credible witness not because of any improper motive
but because of his limited understanding of the English language.
3The record contains a Dismissal of Claim, dated April 29, 2003, wherein
the AJ dismissed the claim of complainant's non-selection for a GS-12 web
team position for a vacancy announcement issued in November 2001, on the
grounds that complainant had failed to contact an EEO Counselor within
45 days. See 29 C.F.R. � 1614.105(a)(1). The AJ did not address this
claim in the July 28, 2004 decision and complainant has not challenged
this finding on appeal. Furthermore, complainant has not provided any
argument or evidence on appeal to refute the propriety of the agency's
April 29, 2003 decision.