0120063907
11-26-2007
Christina Sparks, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Christina Sparks,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200639071
Agency No. 9V1M04525F06
Hearing No. 310-2006-00014X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 18, 2006 final order concerning her
equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency harassed and discriminated against
her on the bases of disability and in reprisal for prior protected EEO
activity (arising under an EEO statute that was unspecified in the record)
when management:
1. Subjected her to a continual hostile work environment from April 5,
2004 through September 5, 2004;
2. Issued her an out-of-cycle performance appraisal, on October 5,
2004, which rated her as below average, needing improvement and with
low appraisal factor scores, and an overall performance rating of
unacceptable; and
3. Denied her the opportunity to work overtime from August 25, 2004
through October 22, 2004.
Complainant timely requested a hearing before an EEOC Administrative
Judge (AJ). The hearing was held on March 21, 2006 and the AJ issued
her decision on April 6, 2006. The AJ concluded that complainant had
failed to establish by a preponderance of the evidence that the unlawful
discrimination occurred. The agency adopted the AJ's decision as it
own in 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. National Labor Relations Brd., 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. On the
other hand, the AJ's credibility determinations based on the demeanor
or tone of voice of the witnesses 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. (Nov. 9, 1999).
Upon review of the record as well as the hearing transcript, we find that
substantial evidence supports the AJ's findings. Even if we assume
that complainant is an individual with a disability and presented
prima facie claims of discrimination and retaliation, we still find
that she has not rebutted the agency's proffered non-discriminatory
explanations for its actions. We further find that complainant has
presented no new, persuasive arguments on appeal. In fact, we note that
she presented no statement on appeal. We remind complainant that it is
her burden to provide us with substantive proof that the explanations
the agency provided to justify its actions were merely pretextual and
that management acted the way it did because complainant is an individual
with a disability and engaged in protected activity. As complainant has
not met this burden, she cannot succeed on her claims. Similarly with
regard to her harassment claim, we find that even if the alleged conduct
was severe and pervasive, the claim fails because complainant has not
shown that management's actions were motivated by discriminatory animus.
See Oakley v. United States Postal Serv., EEOC Appeal No. 01982923
(Sept. 21, 2000) (applying Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993)).2
Accordingly, 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
November 26, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Assuming complainant's allegations of harassment are true, her claim
does not pass the harassment test set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993). Complainant must prove that: (1) she was
subjected to harassment that was sufficiently severe or pervasive to alter
the terms or conditions of employment and create an abusive or hostile
work environment, and (2) the harassment was based on membership in a
protected class. See Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6 (Mar. 8, 1994). Even, as mentioned above, assuming criterion
(1) is met, she has failed to satisfy criterion (2) because she has not
shown that management's actions were prompted by a desire to retaliate
against her or because complainant is an individual with a disability.
See Oakley v. United States Postal Serv., EEOC Appeal No. 01982923
(Sept. 21, 2000).
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0120063907
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063907