01A24686
10-16-2003
Editha C. Ghani, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Editha C. Ghani v. Department of Veterans Affairs
01A24686
October 16, 2003
.
Editha C. Ghani,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24686
Agency No. 99-1717
Hearing No. 370-A2-X2286
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against her, in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
on the bases of race (Asian), national origin (Filipino), and age
(D.O.B. 6/10/47) when the agency failed to promote her to a full-time
registered nurse position from January 1, 1994 to March 1, 2000.
On appeal complainant contends that the Administrative Judge (AJ)
should have recused herself because she was biased against complainant.
In support of her contention, complainant notes that the AJ initially
decided the case against complainant without a hearing.<1> In addition,
complainant provided a letter written by her former attorney that stated
his opinion that the AJ was not �predisposed to [complainant's] position
and in fact appeared slightly antagonistic toward [her] position.�
However, upon review of the record, we find no evidence of bias.
Accordingly, we find no error by the AJ in failing to recuse herself.
Complainant also argues on appeal that the agency's discovery responses
were inadequate. However, the record indicates that complainant did
not object to the agency's discovery responses during discovery, nor did
complainant file a motion to compel. In addition, complainant fails to
identify the specific information she seeks, explain why it is relevant,
and show how it would have changed the conclusions reached by the AJ.
Accordingly, we do not find this argument persuasive.
Lastly, complainant asserts that during the hearing the agency changed its
articulated legitimate, non-discriminatory explanation for its failure
to promote her to a full-time position. Upon review of the record,
we disagree with complainant's view of the record and find that the
agency has consistently explained that there was a hiring freeze that
prevented it from promoting complainant to full-time. Although the
agency also explained at the hearing that there were limited exceptions
to the hiring freeze, it consistently maintained that complainant did
not fall within any exception.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the final
agency order because the Administrative Judge's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
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
October 16, 2003
__________________
Date
1 The AJ's summary judgment decision was reversed by the Office of
Federal Operations on appeal.