0120071025
09-27-2007
Janice McCain, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Janice McCain,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 0120071025
Agency No. DOSF022062
Hearing No. 100200600187x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 1, 2006, final order concerning
her equal employment opportunity (EEO) complaint alleging 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.
In a formal complaint dated June 1, 2005, complainant claimed
discrimination based on race (black) and sex (female) when (a) she was
removed from her position as a Student Trainee/Student Career Experience
Program (SCEP) on January 31, 2005; and (b) she was harassed and subjected
to a hostile work environment. Following an investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
issued a decision without a hearing on September 29, 2006, and the agency
adopted his finding that it did not discriminate against complainant.
At the time of her removal, complainant was assigned to the Audits unit
of the Office of Inspector General (OIG). She began her employment with
the agency OIG under its Cooperative Education Program (COOP) in 1998,
while in a Ph.D. program in African Studies at Howard University; she
began as a GS-9 and was promoted to a GS-13 as of May 2002. In around
June 2003, OIG eliminated the COOP program and replaced it with SCEP,
which limited participants to four years of work at the agency and to
those pursuing an undergraduate degree. Complainant was given extensions
until January 31, 2005, with the promise of a permanent appointment
if she completed her degree by that date; she did not do so and was
removed. Complainant also claimed that she was subjected to a hostile
work environment when she was not allowed to remain in Inspections and
returned to Audits; the agency explained that she was not qualified as
an Inspector and could not move without merit competition.
The AJ found that, to the extent that complainant sought to show that the
agency's initiation of SCEP and her termination constituted discrimination
or subjected her to a hostile work environment, she did not show that
the incidents she identified interfered with her work performance or
were connected to her race or sex. After a review of the record in
its entirety and consideration of all statements submitted on appeal,
including those not specifically addressed, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
order, because the Administrative Judge's issuance of a decision without
a hearing was appropriate,1 and a preponderance of the record evidence
does not establish that discrimination occurred.
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
___9/27/07_______________
Date
1 In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003). After a careful review of the record, the Commission finds that
the AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists such that a hearing on the merits is warranted.
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0120071025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036