01a41708
01-18-2005
Sheila L. Lay, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service) Agency.
Sheila L. Lay v. Department of Veterans Affairs
01A41708
January 18, 2005
.
Sheila L. Lay,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service)
Agency.
Appeal No. 01A41708
Agency No. DFAS-CL-0000-01-018
Hearing No. 220-A2-51594
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Staff Accountant (GS-510-12) at
the agency's Defense Finance and Accounting Service in Cleveland, Ohio,
filed a formal EEO complaint on September 6, 2001, alleging that the
agency discriminated against her in reprisal for prior EEO activity<1>
when on May 1, 2001, she received a summary rating of �fully successful,�
instead of �highly successful,� for the period of May 1, 2000 through
April 30, 2001.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination. The AJ concluded that complainant established
a prima facie case of reprisal discrimination because complainant has
shown that she engaged in prior EEO activity, that the agency was aware
of the activity, that her summary rating was lowered from a �highly
successful� rating to a �fully successful� rating in 2001 within such
period of time that a retaliatory motive can be inferred. See Decision,
at 8. The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the agency
lowered complainant's summary rating according to agency guidelines
which require that an employee receive a �highly successful� summary
rating only where the employee receives an �E� rating on a majority
of critical elements of the performance evaluation. See id. at 9.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that although
complainant submitted an agency document supporting her position that
where an employee receives an �E� and an �M� rating on two critical
elements of the appraisal, receiving an �E� on a non-critical elements
�breaks the tie� and allows the employee to receive an overall �highly
successful� summary rating, the AJ discovered that the document post-dates
the appraisal period at issue and relates to the rating of job elements
and not summary ratings. See id.
The agency's final order implemented the AJ's decision on December 11,
2003. Complainant makes no new contentions on appeal, and the agency
requests that we affirm its 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. Nat'l Labor Relations Bd., 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.
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
and that the AJ's decision referenced the appropriate regulations,
policies, and laws. We conclude that complainant failed to present
evidence that any of the agency's actions were in retaliation for
complainant's 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, the agency's response,
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
January 18, 2005
__________________
Date
1 The record does not identify
under what statute complainant's prior protected activity arose, but
the agency does not contest that complainant filed an EEO complaint on
November 14, 1997.