Elisabeth A. Graffy, Complainant,v.Ken L. Salazar, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionOct 22, 2010
0120092941 (E.E.O.C. Oct. 22, 2010)

0120092941

10-22-2010

Elisabeth A. Graffy, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.




Elisabeth A. Graffy,

Complainant,

v.

Ken L. Salazar,

Secretary,

Department of the Interior,

Agency.

Appeal No. 0120092941

Hearing No. 443-2008-00155X

Agency No. USGS-07-0479

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s

appeal from the Agency’s May 27, 2009 final order concerning her equal

employment opportunity (EEO) complaint claiming 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.

BACKGROUND

On August 29, 2009, Complainant contacted the EEO office claiming that

the Agency discriminated against her on the basis of sex (female).

Informal efforts to resolve Complainant’s concerns were unsuccessful.

Subsequently, Complainant filed a formal complaint and requested a hearing

before an EEOC Administrative Judge (AJ). The record reflects that the

accepted claims, as defined by the AJ, were as follows:

Was Complainant discriminated against based on sex when from November 26,

2006, to the present when:

1. The Agency improperly classified her at lower pay grade than similarly

situated males, and;

2. for fiscal year 2007 and continuing, the Agency required her to work

without a designated rating official, performance standards, performance

evaluations or an accurate position description.

Following a hearing held on March 2, 2009, the AJ issued a decision

finding no discrimination. The AJ concluded that Complainant had not

met his burden of proving that the Agency’s reasons for its actions

were a pretext to discriminate against her.

ANALYSIS AND FINDINGS

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.

Having reviewed the record, including Complainant’s detailed brief in

support of her appeal, we find that the evidence substantially supports

the AJ’s decision. Even if we assume that Complainant established a

prima facie case of sex discrimination, we agree with the AJ that the

Agency provided legally sufficient legitimate reasons for its actions.

Regarding claim 1, the Agency stated that there were no higher level

grade positions at Complainant’s duty station within Complainant’s

functions, and that Complainant was unwilling to relocate to obtain a

promotion (to Washington, DC or Reston, Virginia). Regarding claim 2,

the Agency further stated that due to the end of Complainant’s detail

and her recent promotion to a higher level grade, management sought to

draft a new position description to reflect Complainant’s new duties but

was unable to assign a performance standard. The AJ also noted that an

Agency official had not provided performance standards because Complainant

was under the supervision of Supervisor BJ for less than ninety days in

FY 2007 Complainant failed to prove that these reasons were pretext.

It is the decision of the Equal Employment Opportunity Commission to

AFFIRM the Agency’s final order because the AJ’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 (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

October 22, 2010

__________________

Date

2

0120092941

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120092941