01a46054
04-12-2005
Carolyn R. Moody, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Carolyn R. Moody v. Department of the Army
01A46054
April 12, 2005
.
Carolyn R. Moody,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A46054
Agency No. ARCOY03MAR0021
Hearing No. 110-2004-00127X
DECISION
Complainant initiated an appeal from the agency's final order, dated
August 4, 2004, concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination. For the following
reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, an Equal Employment Opportunity
Specialist, GS-0360-12, at the agency's Atlanta, Georgia facility,
filed a formal EEO complaint on April 9, 2003, alleging that the agency
discriminated against her on the bases of race (African-American) and sex
(female) when she was subjected to harassment from March 2002 to July
2003, and was subjected to acts of reprisal after she initiated the EEO
process in February 2003.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The hearing commenced on April 14, 2004.
At the close of complainant's case, the AJ dismissed the matter, pending
rescheduling at a later date. However, the AJ subsequently issued a
directed verdict, in the agency's favor, finding no discrimination.
In his bench decision, issued June 30, 2004, the AJ concluded that
complainant failed to establish a prima facie case of race or sex
discrimination. Specifically, the AJ found that complainant failed to
demonstrate that she was subjected to conduct that was either sufficiently
severe or pervasive to state a claim of harassment, and that none of the
incidents complainant cited were motivated by either complainant's race,
sex, or in retaliation for protected activity.
The AJ found complainant's testimony confirmed the agency's
non-discriminatory reasons for many of the actions about which complainant
complained. For example, the AJ noted that while complainant complained
about not being given a password or training for the agency's database,
she testified also that she did not need access to the database to do
her job. The AJ did find that complainant established a prima facie case
of reprisal discrimination, but the AJ found that complainant did not
present any evidence of a retaliatory motive on behalf of her supervisor.
The agency's final order implemented the AJ's decision.
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.
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 properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's protected EEO activity or
were motivated by discriminatory animus toward complainant's race or sex.
We discern no basis to disturb the AJ's decision.
Therefore, we AFFIRM the agency's final order finding no discrimination.
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
April 12, 2005
__________________
Date