0120170155
06-29-2017
Anisa U.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Anisa U.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120170155
Hearing No. 430-2014-00384X
Agency No. 54-2008-00188 (08-54-00188)
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 8, 2016 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Management and Program Analyst at the Agency's Director of the Executive Secretariat, which is part of the Administrative Management and Executive Secretariat section of the Office of the Chief Administrative Officer for the National Oceanic & Atmospheric Administration.
On June 3, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of age (62) when:
1. She was not selected for the position of Supervisory Management and Program Analyst, advertised under Vacancy Announcement Nos. UNSEC-2008-0001 and UNSEC-2008-0006.
2. She was subjected to harassment based on age and in reprisal for her prior EEO activity alleging violation under the ADEA. In support of her claim, Complainant alleged the following events occurred:
a. she was demoted� but was not provided a new management plan, job description, responsibilities, or informed if she would have to compete for the intended created position;
b. she was given little work to do;
c. her supervisor refused to correct a mistake in her personnel file showing her as a Management Analyst rather than Supervisory Management Analyst, a mistake that could adversely affect her promotion opportunities and retirement income;
d. she was issued a Letter of Counseling dated July 14, 2008, falsely accusing her of performance and conduct problems;
e. she received a performance score, salary increase, and bonus for FY 2008 which was much lower than the previous year;
f. she was not provided with a position description and her job duties were unclear based on her FY 2009 performance plan; and
g. her supervisor called her into a meeting and said "I am being required to write an affidavit because of the accusations in your complaint."
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The first AJ assigned to the case (AJ1) at hand issued a decision without a hearing. The Agency implemented AJ1's decision. Complainant appealed the matter to the Commission. In EEOC Appeal No. 0120114244 (April 23, 2014), the Commission remanded the matter for a hearing finding that summary judgment was not appropriate.
The matter was assigned to another AJ (AJ2). AJ2 held a hearing on June 24-27 and July 12, 2016. Subsequently, AJ2 issued a decision in favor of the Agency.
The Agency issued its final order adopting AJ2's conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed.
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, at � VI.B. (Aug. 5, 2015).
Upon careful review of A2's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports AJ2's determination that Complainant has not proven discrimination by the Agency as alleged.
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 29, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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