01a43873
03-03-2006
Rene Cochise, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Rene Cochise,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A43873
Agency Nos. WBR-00-005
WBR-00-023
WBR-01-021
WBR-02-021
Hearing No. 100-A2-07428X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that she was discriminated against based on her race
(Native American) and in reprisal for engaging in EEO activity when:
1). On December 10, 1999, she was issued a Letter of Counseling;
2). She was subjected to a hostile work environment when:
(a). she was not promoted to Policy Analyst, GS-301-14, before April 28,
2000;
(b). on March 6, 2000, she was assigned to write a white paper on the
database, and upon completion of the assignment, her supervisor provided
criticism in an unprofessional manner to her staff members about the
completed assignment;
(c). on March 9, 2000, she was given a directive instructing her not
to meet with any Indian Tribes unless approved by her supervisor;
(d). on March 28, 2000, complainant, while Acting Director, was not
provided all correspondence. Complainant indicated that correspondence
was placed in a locked office, which prevented complainant from being
able to fulfill her duties as Acting Director;
(e). on April 14, 2000, complainant's supervisor requested a meeting
with her, and he denied complainant's request for representation;
(f). on April 25, 2000, complainant's open travel authorization was
suspended;
(g). on April 28, 2000, complainant was issued a Letter of Reprimand;
(h). on April 28, 2000, payment for complainant's travel voucher was
denied, and her supervisor launched towards her and physically removed
the travel voucher complainant was holding; and
(i). complainant's supervisor consistently failed to allow her reasonable
time frames for the completion of assignments, withheld information
on work assignments that were time sensitive, and granted personal
preferences and favoritism of work assignments and responsibilities to
other similarly situated employees.
3). She was subjected to a hostile work environment when, on March
15, 2001, she had a meeting with her supervisor, and he conducted an
administrative investigation into her misconduct for her failure to
follow his instructions, and told her that if she gave any false answers
to his questions that she could be subjected to criminal prosecution;
and her supervisor proposed a three-day suspension; and
4). She was subjected to a hostile work environment from May 2, 2002
through July 31, 2003, when an agency official moved a framed certificate
of appreciation that complainant received from the Commissioner of
the agency.
EEOC Regulation 29 C.F.R. � 1614.405(a) provides that 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. 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).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
_____03-03-06_____________
Date
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01A43873
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A43873