01A21289
09-30-2003
Claire D. Fitzgerald, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Claire D. Fitzgerald v. Department of Justice
01A21289
September 30, 2003
.
Claire D. Fitzgerald,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 01A21289
Agency Nos. P-97-9309; P-97-9323; P-97-9416
Hearing No. 320-99-8247X
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 was a Trust Fund Analyst Supervisor,
at the Federal Bureau of Prisons, Management and Specialty Training
Center, in Aurora, Colorado. Complainant filed three formal complaints
alleging harassment and disparate treatment based on sex and in reprisal
for prior protected activity. At the conclusion of the investigation,
complainant was provided a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). On September 12-15,
2000, the AJ conducted a consolidated hearing on the three complaints.
The AJ issued a decision finding no discrimination.
On appeal complainant contends, among other things, that the AJ's
decision must be set aside because the AJ was unable to make proper,
objective findings of fact or legal determinations due to the fact he was
impaired and held animus towards her. Complainant also contends that
the AJ's findings of fact are subjective, clearly erroneous, improper,
and unsupported by the record.
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. Upon review of the record, we find no
evidence to support a finding that the AJ was biased against complainant
or was otherwise �impaired.�
To establish a prima facie case of sexual harassment, complainant must
show that: (1) she belongs to a statutorily protected class; (2) she
was subjected to unwelcome conduct related to her sex, including sexual
advances, requests for favors, or other verbal or physical conduct of a
sexual nature; (3) the harassment complained of was based on sex; (4)
the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
The AJ concluded the only element complainant satisfied was that she
belonged to a statutorily protected class. Specifically, the AJ found
that complainant's testimony was inconsistent, contradictory, not credible
and impeached beyond rehabilitation. As a result, the AJ concluded that
complainant failed to establish that she was subjected to unwelcome
conduct related to her sex, including sexual advances, request for
sexual favors, or other verbal or physical conduct of a sexual nature.
The AJ also found that there was no basis for imputing liability to
the agency because of complainant's failure to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise. The AJ's findings are supported by substantial
evidence in the record. We therefore conclude that complainant has not
shown, by a preponderance of the evidence, that she was subjected to
unlawful sexual harassment.
Complainant has also alleged claims of disparate treatment which are
examined under the three-part analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973); and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F. 2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases). For complainant to prevail, she must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Here, the Commission finds that, assuming, arguendo, complainant
established a prima facie case of sex and reprisal discrimination, the
agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, we find that management was exercising
its authority and prerogative to investigate, criticize, and control
complainant's unacceptable conduct. The AJ concluded that complainant
did not establish that the agency's proffered explanations were unworthy
of belief or pretexts to mask intentional discrimination.
Therefore, 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 discern no basis to disturb the AJ's decision.
Accordingly, 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 (OF) 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
September 30, 2003
__________________
Date