0120080222
04-21-2009
Mary E. Nicholson, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Mary E. Nicholson,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120080222
Hearing No. 461-2006-00055X
Agency No. 8E1C05007
DECISION
On October 12, 2007, complainant filed an appeal from the agency's
September 4, 2007 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
The record reveals that complainant is a former Equal Employment
Opportunity (EEO) Specialist, GS-0260-09, in the Air Combat Command,
Headquarters Second Bomb Wing (2 BW) at Barksdale Air Force Base (AFB),
Louisiana. Complainant was terminated on July 16, 2004, for alleged
unsatisfactory job performance during the probationary/trial period of
her employment. After her termination, complainant did not turn in her
Government Travel Card (GTC), issued in her name during her employment
at Barksdale AFB. Approximately two months after her termination,
two charges were made to complainant's GTC on the same day: one for
a phone expense in Arkansas, and another to a restaurant in Alabama.
Complainant contends that she did not make those charges.1 In December
2004, a routine, monthly GTC delinquency report showed that complainant
was past due on her GTC payment, ultimately leading to an investigation
of the unauthorized use in January 2005. Beginning in late March or
early April, deductions were made from complainant's Leave and Earnings
Statement. Complainant was also issued a citation or NOTICE TO APPEAR
in federal court in Louisiana.
On August 13, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of reprisal for prior protected
EEO activity [under Title VII] when her former employer failed to notify
her that the government travel card issued in her name was found to be
delinquent for purchases made in September 2004.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing via video teleconference3
on July 11, 2007 and issued a decision on August 7, 2007 in favor of
the. agency.
The AJ found that complainant did not establish a prima facie case
of reprisal discrimination, noting that no one who was any more than
tangentially involved in investigating or prosecuting the allegations
against complainant was aware of her prior EEO activity. The AJ then
found that an agency official whom complainant accuses of retaliation,
credibly testified that he attempted to contact complainant telephonically
concerning the charges but that he could not reach her. The AJ also
noted that had complainant filed a forwarding address with the United
States Postal Service, then she would have received credit card statements
reflecting the delinquent charges. The AJ found no persuasive evidence
that the agency's actions (or omissions to act, in this instance) were
motivated by retaliatory animus. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
she was subjected to discrimination as alleged.
On appeal, complainant raises no new arguments. The agency asks
the Commission to affirm the final order. 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.
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).
The AJ's conclusions in this case are supported by substantial evidence in
the record. Based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we AFFIRM
the final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 21, 2009
__________________
Date
1 After she filed a fraud claim, complainant was ultimately sent a refund
check from the credit card company.
2 At the time of the events in question, complainant was still employed
by the agency as an EEO Specialist, however at a different location:
Peterson AFB, Colorado.
3 In Allen v. United States Postal Service, EEOC Appeal No. 01A51259
(August 21, 2006), the Commission determined that videoconferencing
provides an acceptable alternative to an in-person hearing.
The Commission identified a number of factors that an Administrative
Judge should consider before electing to proceed via videoconferencing,
including: the availability and proximity to the participants of
the videoconferencing facilities; the adequacy of the available
videoconferencing facilities, to include any technological issues; the
cost to the respondent agency (if any) balanced against the savings
in travel time for all parties, and the AJ; the number of expected
participants; and the objections of the parties, if any. Id. In the
instant case, as in Allen, there is no indication of objection to the
use of videoconferencing by either party. Under these circumstances,
the Commission concludes that the AJ did not abuse her discretion by
electing to hold a videoconference hearing.
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0120080222
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013