Janice Washington, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
05A20657 (E.E.O.C. Sep. 18, 2002)

05A20657

09-18-2002

Janice Washington, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.


Janice Washington v. Department of Defense

05A20657

September 18, 2002

.

Janice Washington,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Agency.

Request No. 05A20657

Appeal No. 01A20713

Agency No. 99-EAS-PG-026

DENIAL OF REQUEST FOR RECONSIDERATION

Janice Washington (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Janice Washington v. Department of Defense, EEOC Appeal

No. 01A20713 (March 12, 2002). EEOC Regulations provide that the

Commission may, in its discretion, reconsider any previous Commission

decision where the requesting party demonstrates 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. See 29 C.F.R. �

1614.405(b).

After a review of complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that

the request fails to meet the criteria of 29 C.F.R. � 1614.405(b).

Complainant alleged that she was discriminated against on the bases of

race (Black) and sex (female) when she was suspended for three calendar

days in April, 1999. The agency gave as its reason for suspending

complainant that she was insubordinate to her supervisor. At a hearing

before an EEOC Administrative Judge (AJ) the parties presented evidence

concerning the incident during which the alleged insubordination took

place including the testimony of complainant and her supervisor. In her

recommended decision the AJ found as a fact that complainant's behavior

was insubordinate and concluded that complainant had failed to prove

race or sex-based discrimination. That decision was implemented by the

agency and affirmed by the Commission in the previous decision.

In her request for reconsider, complainant essentially concedes that she

was insubordinate but maintains that she should not have been punished

for her behavior. Imposition of an excessive punishment might, under

some circumstances, be shown to be a manifestation of discriminatory

animus but, in this case, complainant was unable to persuade the AJ

that this was the case. 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). Here,

the AJ's finding with respect to discriminatory intent was supported

by substantial evidence, i.e., the testimony of the agency officials

involved. We see no reason not to uphold it.

For the foregoing reasons, it is the decision of the Commission to

deny the request. The decision in EEOC Appeal No. 01A20713 remains

the Commission's final decision. There is no further right of

administrative appeal on the decision of the Commission on this request

for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

September 18, 2002

__________________

Date