01a55229
11-02-2005
Enid Weber, Complainant, v. Robert J. Battista, Chairman, National Labor Relations Board, Agency.
Enid Weber v. National Labor Relations Board
01A55229
November 2, 2005
.
Enid Weber,
Complainant,
v.
Robert J. Battista,
Chairman,
National Labor Relations Board,
Agency.
Appeal No. 01A55229
Agency Nos. HDQ-01-03;
HDQ-02-02; & HDQ-03-03
Hearing No. 100-A2-8154X
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 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., on the bases of national origin
(Hispanic), sex (female) and reprisal (prior EEO activity) when:
(1) it isolated her by removing any reference to her from the voice
mail greeting on the Executive Secretary's phone;
(2) it issued her a performance appraisal that rated her "Commendable"
in two critical elements, resulting in an overall rating of "Commendable"
instead of "Outstanding" and a smaller performance award on or about
September 18, 2000;
her appraising official told her that the denial of access to Board
employees precluded her from achieving an outstanding level of
performance;
on or about September 28, 2001, it issued a performance appraisal with
a lower than expected rating of "Commendable" and gave her a lower
performance award for the 2000-2001 appraisal period;
on August 6, 2002, it issued her a performance appraisal with a lower
overall rating of "Commendable," which resulted in a performance award
lower than complainant deserved.
Complainant argues in her appeal brief that the summary judgment decision
failed to address the processing of her three EEO complaints. However,
we find that the AJ resolved this issue prior to the summary judgment
decision in an order dated November 19, 2004. We also agree with the
agency, that complainant has failed to show unfair prejudice or that the
AJ erred in his ruling. In addition, we find no meaningful difference
in how the agency framed the issues and how complainant would have
preferred the issues framed. Lastly, we agree with the AJ in finding
insufficient evidence to support a genuine dispute of material fact.
Aside from complainant's bare assertions, there is no evidence of pretext
or discriminatory animus in the record.
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 agency's
final order, because the Administrative Judge's issuance of a decision
without a hearing was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.
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
November 2, 2005
__________________
Date