01A22785
05-08-2003
Daisie D. McCullough, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Daisie D. McCullough v. Department of the Army
01A22785
05-08-03
.
Daisie D. McCullough,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A22785
Agency No. AGDUFO9906J0090
Hearing No. 140-A0-8258x
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, as amended, 42 U.S.C. � 2000e et seq (Title VII).
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 Administrative Assistant,
GS-303-5 at the agency's Fort Jackson, South Carolina facility, sought
EEO counseling, and subsequently filed an EEO complaint alleging that,
because of her race (Black) and sex, she was discriminated against in
reassignment, reclassification of position, and performance ratings.
Complainant further alleged that she was sexually harassed and
retaliated against for previously participating in protected activity.
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 on complainant's claims of reassignment and
reclassification; the AJ issued a decision on the record on complainant's
performance rating claim, also finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race or retaliation discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees not in
complainant's protected classes were treated differently under similar
circumstances in the reassignment, reclassification or performance
appraisal claims. The AJ similarly found that complainant was not
sexually harassed.
The agency's final order implemented the AJ's decision.
On appeal, complainant argued for the first time that 1) her
administrative assistant position was an �over-strength� position; 2)
she was not promoted to the position of administrative officer; 3) the
agency violated an army regulation and the agency's negotiated agreement
when it failed to complete her performance rating and extended her rating
period; 4) she was the victim of a hostile environment after she reported
the Dirty Joke Club; 5) white employees were promoted while complainant
was not; and 6) complainant was subjected to a racially hostile working
environment.
In response, the agency argued that complainant's new claims should
not be considered on appeal, and stood on the record in support of its
final order.
ISSUE
Whether the agency discriminated against complainant on the bases of race
(African-American), sex (female) and sex harassment, and reprisal for
prior EEO activity when 1) on December 16, 1998, LTC M advised complainant
that she would be reassigned to a position called Management Assistant,
and asked complainant if she would accept a promotion in exchange
for sex; 2) on April 12, 1999, complainant's position was classified
as Administrative Assistant; and 3) complainant's rating period was
extended and ratings were placed in complainant's file that were issued
out of time.
ANALYSIS
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 sex or race.<1>
We discern no basis to disturb the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), decisions on the record are reviewed
de novo; 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).
As with the AJ's decision following a hearing, we see no reason to
disturb the AJ's decision regarding the performance rating claim.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal,<2> 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
___05-08-03_______________
Date
1 We note that the AJ incorrectly analyzed complainant's sex harassment
claim under a theory known as �quid pro quo.� As set out in the
Commission's Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, at n. 7
(June 18, 1999), �it is now more useful to distinguish between harassment
that results in a tangible employment action and harassment that creates
a hostile work environment.� Applying the standards set out by the
Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
762-65 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08
(1998), we find that where the AJ credited the LTC M's testimony that he
did not tell complainant that he would promote her in exchange for sex,
no liability will lie.
2 A complainant may not raise a new claim of discrimination for the
first time on appeal. Torres v. United States Postal Service, EEOC
Appeal No. 01934108 (Jun. 10, 1994); see also Singleton v. Social
Security Administration, EEOC Appeal No. 01984785) (Apr. 13, 2001) at
n. 4, Request to Reconsider Denied, EEOC Request No. 05A10698 (Aug. 8,
2001) (claim must be amended prior to completion of investigation or
at hearing). However, complainant is advised that if she wishes to
pursue, through the EEO process, the new claims of discrimination that
she raised for the first time on appeal, she shall initiate contact
with an EEO counselor within 15 days after the date that she receives
this decision. The Commission advises the agency that if complainant
seeks EEO counseling regarding the new claims within the above 15-day
time period, the date complainant filed the appeal statement in which
she raised these claims with the agency shall be deemed to be the date
of the initial EEO contact, unless she previously contacted a counselor
regarding these matters, in which case the earlier date would serve as
the EEO counselor contact date. Cf. Qatsha v. Department of the Navy,
EEOC Request No. 05970201 (January 16, 1998).