01A21760
01-21-2003
Cynthia Howard, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Cynthia Howard v. Department of the Air Force
01A21760
January 21, 2003
.
Cynthia Howard,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A21760
Agency Nos. AR0000103231
RX1M00041
Hearing No. 110-AO-8500X-PD
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, an Electronic Worker, WG-8, at the
agency's EW Production Branch, Avionics Management Directorate, located
at Robins Air Force Base, in Georgia, filed a formal EEO complaint on
February 3, 2000, alleging that the agency had discriminated against
her on the bases of her race (African-American) and her sex when:
(1) her immediate supervisor (S1) lied about her numerical score of 50
on her August, 1999, initial 90-day Civilian Performance and Promotion
Appraisal (CPPA) when he stated that he usually gave this score to
new employees;
she was assigned duties not included in her core document; and
S1 did not assure her that her personnel records were correctly coded.
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 found the following: In regards to (1), complainant alleged that
S1 lied to her when he stated that her numerical score of 50 on her CPPA
was what he gave satisfactory new employees. Complainant found that
other employees hired before her earned ratings of 62 for their initial
90-day CPPA. The AJ found that complainant established a prima facie
case of only race discrimination because similarly situated employees,
not in complainant's protected class, were treated differently by
being given a higher numerical score of 62. The AJ further concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its actions. The AJ found that the employees rated at 62 had extensive
prior electronics experience, thereby enabling S1 to assign them test
work or work in electronics immediately. Complainant had not been
employed in the field of electronics for many years. Additionally,
the AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were pretexts to mask
unlawful discrimination. In reaching this conclusion, the AJ found
that complainant did not dispute S1's testimony that the higher rated
employees were more experienced and capable of doing more difficult work.
In addition, the employees who received the 62 rating consisted of one
African-American male, one Caucasian female, and two Caucasian males.
In regard to (2), the AJ found that complainant failed to establish a
prima facie case of discrimination on either basis since she did not
suffer an adverse employment action. Moreover, the AJ found that the
duties that she complained were improperly assigned to her were, in
fact, her duties as listed in her core document. Finally, in regard to
(3), the AJ found that complainant failed to establish a prima facie
case because she had not presented evidence to show that S1 assured
other employees that their personnel records were properly coded and
that it was not his responsibility to do so. The agency's final order
implemented the AJ's decision. Complainant makes no new contentions on
appeal, and the agency requests that we affirm its final order.<1>
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 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 regardless of whether 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 to support the inference that
any of the agency's actions were motivated by discriminatory animus
toward complainant's race or sex. We discern no basis to disturb
the AJ's decision. 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
January 21, 2003
__________________
Date
1 Although complainant did not raise a claim of hostile work
environment, the AJ concluded that complainant failed to establish
a claim of hostile work environment based on her race and sex.
In so finding, the AJ found that the incidents complained of were not
sufficiently severe or pervasive, and did not interfere with her work
performance.