0120063925
11-28-2007
Phyllis Hicks, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Phyllis Hicks,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200639251
Agency No. MN1L03022F06
Hearing No. 170-2005-00341x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 23, 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. Complainant alleged that the
agency harassed and discriminated against her on the bases of race
(African-American), sex (female), and in reprisal for prior protected
EEO activity (arising under Title VII) when:
1. Her supervisor failed to respond to her September 11, 2003 request
to review her personnel records and consider a wage increase;
2. On September 3, 2003, management hired a white female to coordinate
sponsorship;
3. Management failed to give her the criteria for outstanding performance
for the 2002 and 2003 appraisal periods, and her first line supervisor
failed to give her a fiscal year 2003 performance review;
4. Other employees received wage increases in 2002 and 2003, and
5. Management continuously harassed her resulting in her constructive
discharge.
Complainant timely requested a hearing before an EEOC Administrative
Judge (AJ) which was held on March 28 and 29, 2006. Subsequently,
in the AJ concluded that complainant had failed to establish a prima
facie case of discrimination on any alleged basis. The agency adopted
the AJ's decision as it own in its final order.
On appeal, complainant argues that the AJ's decision is in error
because the AJ did not allow many of complainant's witnesses testify
at the hearing. By contrast, complainant points out, the AJ allowed
the agency to present documents on the day of the hearing, refusing to
allow complainant or her representative adequate time to review them.
Complainant argues that these actions were unjust and prejudiced her.
The agency responds, arguing that the AJ's decision must be affirmed
because complainant had not shown on appeal that the AJ's conclusions are
not supported by substantial evidence in the record. The agency maintains
that there was no error in the AJ's exclusion of witness testimony.
Complainant did not establish a prima facie case of discrimination because
she did not point to any similarly situated employees, outside of her
protected groups, who were treated any differently than she. Moreover,
the agency insists that complainant did not prove that management's
actions were pretextual because she did not rebut the management's
non-discriminatory reasons for its actions.
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 Brd., 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. On the
other hand, the AJ's credibility determinations based on the demeanor
or tone of voice of the witnesses 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. (Nov. 9, 1999).
Upon review of the record and the hearing transcript, we find that
substantial evidence supports the AJ's findings. Even assuming
complainant had established prima facie claims of discrimination,
management provided legitimate, non-discriminatory reasons for its
actions which complainant indeed failed to rebut with evidence of pretext.
We remind complainant that this case falls under the McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) rubric of analysis. Under this
test, once a complainant establishes a prima facie case, the burden
of production falls on the agency to establish a non-discriminatory
reason for the challenged action. See Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 253-54 (1981); McDonnell Douglas, 411 U.S. at
802. If the agency articulates a non-discriminatory reason, any prima
facie inference drops from the case. See St Mary's Honor Cntr. v. Hicks,
509 U.S. 502, 507, 510-11 (1993). It then becomes complainant's burden
to prove by a preponderance of the evidence that the agency's proffered
reason is nothing more than a pretext to discriminate.2 See id. at
511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
At all times during the analysis, the ultimate burden of proof falls
on complainant.
Here, complainant has not met this burden and has not shown that the
management's actions were motivated by discriminatory animus. By the
same token, we find no basis for her harassment claim.3 As for her
argument that it was error to disallow complainant's named witnesses
to testify on her behalf, we agree with the agency that neither it nor
the AJ could compel the witnesses who no longer worked for the agency to
testify in this administrative hearing. Moreover, we find it within the
AJ's discretion to exclude complainant's other witnesses. The AJ did so
based on relevancy. The AJ has the authority to "limit the number of
witnesses so as to exclude irrelevant ... evidence." Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 7, III,
D, 4 (Nov. 9, 1999).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record.
Complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race, sex, or
her prior EEO activity. We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final order.
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
November 28, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Pretext can be demonstrated by "showing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
[agency's] proffered legitimate reasons for its action that a reasonable
fact finder could rationally find them unworthy of credence." Dalesandro
v. United States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006)
(citing Morgan v. Hilti, Inc., 108 F3d 1319, 1323 (10th Cir. 1997)).
3 Assuming complainant's allegations of harassment are true, her
claim does not pass the harassment test set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993). Complainant must prove that: (1)
she was subjected to harassment that was sufficiently severe or pervasive
to alter the terms or conditions of employment and create an abusive or
hostile work environment, and (2) the harassment was based on membership
in a protected class. See Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 6 (Mar. 8, 1994). Even assuming criterion (1) is
met, she has failed to satisfy criterion (2) because she has not shown
that management's actions were prompted by a desire to retaliate or
discriminate against her on the basis of her race or sex. See Oakley
v. United States Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
??
??
??
??
2
0120063925
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120063925