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