01a12935
09-18-2002
Claudia S. Glover, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Claudia S. Glover v. Department of Health and Human Services
01A12935
September 18, 2002
.
Claudia S. Glover,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A12935
Agency No. NCIEEO990008
Hearing No. 120-AO-3401X
DECISION
Claudia S. Glover (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, a Health Statistician at the
agency's National Cancer Institute, Bethesda, Maryland facility, filed
a formal EEO complaint on August 23, 1999, alleging that the agency had
discriminated against her on the bases of race (African-American), color
(dark complexion), and sex (female) and subjected her to retaliation
for prior EEO activity (under Title VII) when she received an official
reprimand for misconduct on February 19, 1999.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race, color or sex discrimination, noting that she proffered nothing
beyond her own opinion to indicate that she was disciplined as a result
of her membership in those protected groups. The AJ also concluded,
however, that complainant established a prima facie case of retaliation,
in that she engaged in prior EEO activity of which her supervisor,
the named responsible management official (RMO), was aware, and was
subsequently reprimanded.
The AJ further concluded that the agency articulated a legitimate,
nondiscriminatory reason for its action. The AJ found that complainant
moved a file cabinet from the common office area into her own office
without permission and that when RMO told her to replace the cabinet,
she refused and engaged in an angry discussion with him. The AJ concluded
that RMO issued the official reprimand based on this behavior.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reason was a pretext to mask unlawful
discrimination and/or retaliation. In reaching this conclusion, the
AJ found complainant's contention that she did not raise her voice when
speaking to RMO on the day in question unconvincing, given testimony from
witnesses that both complainant and RMO spoke loudly. The AJ noted that
even the statements complainant admitted to making established that she
intended to provoke RMO and communicate her defiance of his authority.
The AJ further noted that RMO's claim that he did not raise his voice
during the discussion was also not credible, but concluded that this did
not establish that the official reprimand was retaliatory. The AJ found
that the record established that complainant moved a file cabinet into
her office that she was not authorized to move, that she defied RMO's
directive to return the cabinet, and that she engaged in a brief but
heated argument with RMO over the event. The AJ concluded that this
behavior was the basis for the reprimand and that complainant failed
to prove that, more likely than not, the reprimand was discriminatory
or retaliatory.
The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
She also contends, among other things, that the AJ erred in allowing
RMO to make false statements throughout the hearing. She argues that
a reexamination of the record will show that she endured many years of
discrimination and retaliation at the hands of RMO.
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 prior EEO activity or
were motivated by discriminatory animus toward complainant's race,
color or sex. We discern no basis to disturb the AJ's decision.
Although complainant argues that the AJ erred in relying on RMO's
testimony about the event in question, the AJ stated in her decision
that neither complainant nor RMO testified credibly about the event that
led to the reprimand. Specifically, the AJ noted that both complainant
and RMO testified that only the other raised his/her voice during the
discussion, while the testimony of other witnesses established that
both spoke loudly. The AJ further concluded, however, that the record
establishes that complainant moved a cabinet into her office that she
was not authorized to move, and defied RMO's authority by refusing
to return the cabinet and engaging in a heated discussion with him.
These findings are supported by substantial evidence in the record.
Furthermore, although complainant argues on appeal that the AJ conspired
with the agency representative to �fix the outcome� of the case, she
offers no evidence whatever of any improper conduct on the part of the
AJ or the agency representative. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, 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 (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
September 18, 2002
Date
1 Complainant also alleged that she received an inaccurately low
performance appraisal in March 1999. The record reveals that this issue
was dismissed on September 10, 1999. This partial dismissal occurred
prior to the November 9, 1999 revisions to 29 C.F.R. Part 1614, which
eliminated the right to immediately appeal partial dismissals, and there
is no evidence to indicate that complainant appealed this dismissal at
the appropriate time. Accordingly, the performance appraisal issue will
not be addressed in this decision.