0120070434
08-07-2008
Charla L. Sizemore, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Charla L. Sizemore,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120070434
Agency No. 04-51-00152
Hearing No. 100-2005-00502X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 25, 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
At the time of this complaint, complainant worked as an agency EEO
investigator, Office of Civil Rights.1 Complainant claimed that the
agency discriminated against her on the bases of race (African-American),
sex (female), disability (carpal tunnel syndrome (CTS), pernicious anemia,
hypertension), age (52), and in reprisal for prior EEO activity when she
was harassed and subjected to a hostile work environment, including the
following incidents:
(a) on October 10, 2004, she was issued a 14-day suspension for misuse
of a government-issued travel credit card; and
(b) she was not allowed to attend training on October 20-21,
2004.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On July 25, 2006, the AJ held a hearing
and, on September 7, 2006, issued a decision, finding that the agency
did not discriminate against complainant.
The AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, and complainant did not demonstrate pretext.
Regarding claim (a), the AJ found that in April 2004, the agency was
notified by complainant's previous employer, another federal agency,
that complainant was abusing her government-issued travel credit card.
Specifically, the previous employer indicated that complainant had made
38 unauthorized charges totaling $2,293.23, none of which was related
to government travel; and she was five months in arrears. Following its
table of penalties, the agency issued complainant a 14-day suspension.
Regarding claim (b), the AJ found that the agency explained that
complainant's training was canceled because she had not completed a Report
of Investigation (ROI) in a form acceptable to her managers. The agency
was subject to an AJ's 15-day Order to produce the ROI. In addition,
the AJ found that complainant did not present evidence of a hostile work
environment. The AJ found that although the record contained evidence
that she had an impairment of CTS but not the others, she did not show
its relevance to her claim, and that, inasmuch as her claim based on
reprisal referred to the instant matter, it was dismissed.2
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). 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. We find
that the decision of the AJ accurately stated the facts and correctly
applied the pertinent principles of law. The Commission finds that, even
assuming, arguendo, that complainant established a prima facie case of
discrimination on all bases alleged, the agency articulated legitimate,
nondiscriminatory reasons for its actions and that complainant failed
to demonstrate pretext.
After a review of the record in its entirety and consideration of all
statements submitted on appeal, it is the decision of the Equal Employment
Opportunity Commission to affirm the agency's final decision, because the
AJ's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
Accordingly, the agency's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__08/07/2008________________
Date
1 This complainant was investigated by a sub-agency to avoid conflict
of interest.
2 On appeal, complainant did not address the issues in her complaint or
respond to the agency's explanations and, instead, raised new issues of
alleged harassment following the events herein. The Commission has held
that it is not appropriate for complainants to raise new claims for the
first time on appeal. See Hubbard v. Department of Homeland Security,
EEOC Appeal No. 01A40449 (April 22, 2004). Complainant is advised to
contact an EEO Counselor to begin the administrative process, should
she wish to pursue these claims.
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0120070434
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070434