0120131940
07-23-2015
Complainant v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120131940
Hearing No. 480-2010-000283X
Agency No. DON-09-00259-01161
DECISION
On April 1, 2013, Complainant filed an appeal from the Agency's February 19, 2013, 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.1 The appeal is accepted it pursuant to 29 C.F.R. � 1614.405(a). Upon review, the Final Order is AFFIRMED.
ISSUE PRESENTED
The issue presented before the Commission on appeal is whether the decision of an Equal Employment Opportunity Administrative Judge (AJ) finding that Complainant did not establish discrimination based on race, national origin, and reprisal is supported by substantial evidence.
BACKGROUND
During the period at issue, Complainant worked as a Health Technician at the Agency's Navy Medical Center in San Diego, California. She filed a formal complaint alleging discrimination on the bases of race (Asian), national origin (Filipino), and reprisal when she was terminated on November 18, 2008. The Agency accepted the complaint for investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, a Final Decision from the Agency based on the ROI. Complainant timely requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ.
The AJ assigned to the case held a hearing, and at the conclusion thereof, issued a decision in which he found Complainant failed to prove discrimination as alleged.2 When the Agency failed to issue a Final Order within 40 days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i). Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, in relevant part, that the AJ's decision is not supported by substantial evidence, that the Agency's legitimate, nondiscriminatory reasons for its action should not be believed, and that the AJ abused his discretion by accepting the Agency's testimony as true. The AJ submits no contentions on appeal.
STANDARD OF REVIEW
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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness 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 EEO MD-110, Chap. 9, at � VI.B.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume for purposes of our analysis, without so finding, Complainant has established prima facie cases of race, national origin and reprisal discrimination.
We now examine whether the Agency stated legitimate, nondiscriminatory reasons for its decision to deny Complainant's waiver request. In this regard, the AJ found credible the Agency's explanation that Complainant, who was a probationary employee in that she was hired on November 26, 2007, and terminated on November 18, 2008, was terminated because she was Unfit for Performance. In reaching this determination, the AJ relied on emails sent by Complainant's supervisor (S1) to other Agency officials criticizing Complaint's performance and referring to complaints from physicians who refused to work with Complainant. The AJ also relied on emails from S1 stating that Complainant was too slow in task performance and did not think ahead regarding what instruments were needed during medical procedures, which negatively impacted the physicians' work and patient care. The AJ also relied on emails from one physician who stated that Complainant's work was "grossly deficient." We find that the Agency has met its burden to state legitimate, nondiscriminatory reasons for its action.
Complainant must now show that the Agency's stated reasons are pretext for discrimination. During the hearing, Complainant merely stated that the Agency should not be believed. Nonetheless, the AJ found the Agency's witnesses to be credible. We note that, on appeal, in attempting to prove pretext, Complainant merely alleges discrimination because of her race, national origin, or prior EEO activity, allegations which she did not support with probative evidence. However, this testimony does not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant failed to meet her burden to prove pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hold that the AJ's decision finding that Complainant did not establish discrimination on the bases of race, national origin, and reprisal when she was terminated from the Agency is supported by substantial evidence. Accordingly, the Agency's Final Order is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 23, 2015
Date
1 The Agency did not issue its Final Order until April 22, 2013, beyond the 40 days required by our regulations. Therefore, pursuant to our regulations, the AJ's decision became the Agency's Final Order. See 29 C.F.R. � 1614.109(i).
2 Of the five witnesses who testified at the hearing, including Complainant, the AJ allowed one witness to testify telephonically and another by video teleconference, with his justification for doing so documented in the record. Complainant does not challenge this aspect of the AJ's decision-making authority on appeal. This matter is not addressed in this decision, as the Commission exercises its discretion to review only those issues expressly raised on appeal. EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � IV.A (Nov. 9, 1999) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
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0120131940
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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