0520120530
01-03-2013
Gaitee A. Hussain, Complainant, v. Jeffery N. Trimble, Executive Director, Broadcasting Board of Governors, Agency.
Gaitee A. Hussain,
Complainant,
v.
Jeffery N. Trimble,
Executive Director,
Broadcasting Board of Governors,
Agency.
Request No. 0520120530
Appeal No. 0120110616
Agency No. OCR1001
DENIAL
Complainant timely requested reconsideration of the decision in Gaitee A. Hussain v. Broadcasting Board of Governors, EEOC Appeal No. 0120110616 (June 11, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Muhajir), sex (female), and reprisal for prior protected EEO activity when: (1) on November 4, 2008, April 1, 2009, and April 9, 2009, a male co-worker yelled at her and berated her; (2) on February 6, 2009, management falsely accused her of allowing a listener to criticize a colleague on a radio show she hosted in January 2009, and barred her from hosting live shows; (3) on April 30, 2009, her supervisor (S1) notified her that the Agency was not renewing her contract and that her last day would be June 30, 2009; (4) on June 9, 2009, management denied her co-workers' request to hold a farewell party for her; and (5) in staff meetings on March 1, 2010 and March 2, 2010, S1 raised the subject of her EEO complaint, discussed specific details about the complaint, and stated that she would be receiving copies of the testimony provided by each witness in the complaint.
The appellate decision affirmed the Agency's final decision, which found that Complainant failed to prove, by a preponderance of the evidence, that she was subjected to disparate treatment and harassment as alleged.
Regarding claim 3, the appellate decision found that S1 articulated legitimate, nondiscriminatory reasons for not renewing Complainant's contract; namely, her ongoing conflicts with co-workers, her chronic lateness, her misbehavior on air, her inability to handle political or other complicated materials, and her pursuing independent projects without performing her primary production role. Moreover, the appellate decision found that Complainant, who "did not address any of the reasons provided by [S1] for the non-renewal," failed to establish that the Agency's articulated reasons were a pretext for discrimination.
Regarding claim 5, the appellate decision found that there was no per se retaliation. First, the appellate decision found that Complainant incurred no adverse treatment because she was no longer working at the Agency when the meetings occurred. Second, the appellate decision found that S1 held the meetings to encourage cooperation with the EEO process and not to retaliate against Complainant. The appellate decision determined, based on employee affidavits, that S1 did not attempt to dissuade or hinder employees from participating in the EEO process but rather told them of their responsibility to cooperate with the EEO investigation. The appellate decision, however, noted the potential "chilling effect" of such meetings and cautioned that its finding was only based on the particular facts of this case.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant contended that the appellate decision erred in finding no discrimination in claims 3 and 5.1 Regarding claim 3, Complainant argued that, contrary to the appellate decision's statement that she did not address any of S1's reasons, she clearly addressed each of S1's reasons in her rebuttal statement. Regarding claim 5, Complainant argued that we should "reconsider the appellate decision's interpretation of the facts" surrounding the meetings. Specifically, Complainant asserted that employee affidavits clearly indicated that S1 held the meetings not to clarify the EEO process but to serve as a warning that she would have information on "who" was saying "what." Moreover, Complainant asserted that the appellate decision's finding of no retaliation would give an impression to other managers that such meetings were acceptable and were not that serious of a transgression.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant has not shown that the appellate decision clearly erred in finding no national origin, sex, or reprisal discrimination.
Regarding claim 3, while the appellate decision stated that Complainant did not address any of S1's reasons, we note that the record contains a June 18, 2010, rebuttal statement in which Complainant addressed each of S1's reasons. Even considering the detailed rebuttal statement, however, we find that Complainant has not shown that the appellate decision clearly erred in finding that she failed to establish pretext.
Regarding claim 5, we find that Complainant has not shown that the appellate decision clearly erred in concluding that S1's motive was to encourage cooperation with the EEO process. While Complainant disagreed with the appellate decision's original interpretation of the facts and asked us to essentially reinterpret the facts, we remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VII.A. (Nov. 9, 1999). As to Complainant concerns about the impact on management holding similar meetings in the future, we note that the appellate decision cautioned the Agency about the potential "chilling effect" of such meetings and explicitly stated that its finding of no retaliation was based on the particular facts of this case.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120110616 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
___1/3/13_______________
Date
1 Complainant's request did not specifically address claims 1, 2, or 4.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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