01973105
06-09-1999
Idolina A. Davis, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing & Urban Development Agency.
Idolina A. Davis, )
Appellant, )
) Appeal No. 01973105
v. ) Agency No. FW 95-06
) Hearing No. 360-95-8327X
Andrew M. Cuomo, )
Secretary, )
Department of Housing & )
Urban Development )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination on the bases of sex,
national origin (Hispanic), and age (54), in violation of Title VII of
the Civil Rights Act of 1964, 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. Appellant alleges she was discriminated against
when her one year detail to the position of Financial Analyst (GS-12)
in the Public Housing Division was terminated and she was reassigned
to her former position of Realty Specialist (GS-11) in the Property
Disposition Division. The appeal is accepted in accordance with EEOC
Order No. 960.001.
At the time in question, appellant was employed by the agency at its San
Antonio, Texas, Field Office (office). In January 1993, appellant was
selected under an "informal" competitive process for a one year detail
to the Financial Analyst position noted above. The usual practice of
the office was to convert this type of detail to a permanent assignment,
resulting in a promotion for the detailed employee. However, appellant's
detail was terminated on February 14, 1994, and she was reassigned back
to the Realty Specialist position in the Property Disposition Division.
Appellant timely sought EEO counseling and filed a formal EEO complaint
alleging that the agency had discriminated against her as referenced
above when it terminated her detail. The agency accepted and processed
the complaint, and at the conclusion of the investigation, appellant
requested an administrative hearing before an EEOC Administrative Judge
("AJ"). Following a hearing, the AJ issued a Recommended Decision ("RD")
finding no discrimination.
The AJ found that, in February 1994, the office received instructions
from its Headquarters in Washington D.C. to begin implementation of the
agency's new nationwide plan for reorganization. A first step in this
plan was the immediate cancellation of all details between Divisions.
It appears that appellant had technically just completed her year
long detail as of February 11, 1994, and was expecting the promotion
as usual under the informal practice of the office. However, her
supervisor failed to submit the required paperwork (SF-52), prior to
completion of the detail, so that it was not converted in time to avoid
the reorganization mandate to cancel all details between Divisions.
The Director of the Office of Public Housing made several formal
attempts to retain appellant, but was unsuccessful. Appellant was then
encouraged by management to apply for newly created positions under the
reorganization plan, including the Financial Analyst position to which
she had been detailed in Public Housing. However, because the position
was reclassified with a new title as a GS 7/9/11/12, appellant said that
she did not apply for it, fearing that it could result in a demotion,
and also because she felt it was unfair that she be required to apply
for a position to which she was already entitled. A 39-year old White
female was selected for the position.
In the RD, the AJ concluded that appellant established a prima facie case
of discrimination as she was a member of the protected groups alleged,
and that the termination of her detail and reassignment constituted
adverse actions. The AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the termination
of the detail and reassignment were mandated by the nationwide plan
for reorganization, which overrode the usual customs and practices
of the office. The AJ determined that documentary evidence of record
corroborated the agency's articulated reasons and noted the evidence
reflecting that several formal attempts were made to retain appellant in
the detailed position, despite the reorganization plan. The AJ also found
that, notwithstanding appellant's explanation for not applying for the
reclassified Financial Analyst position under the reorganization plan,
there was no evidence that she was misled to believe that there was a
risk of demotion if she was selected.
The AJ found that appellant failed to establish that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
Appellant contended that the agency's articulated reasons were pretextual
because the reorganization plan was approved in October 1993, and she
was not affected until February 1994. Thus, she contended that the
termination of her detail did not result from implementation of the
reorganization. However, the AJ found that the delay in implementation
was normal, and did not constitute either pretext or discrimination.
Appellant also argued that the termination of her detail, and failure
to promote her permanently into the position, violated the applicable
agreement between the agency and the union. In the RD, the AJ found
that the union agreement did not �guarantee� this promotion, and noted
that the union subsequently agreed to the terms and conditions of the
reorganization plan, in effect superceding certain terms of the agreement.
The AJ also found that the position in question was filled competitively
and that appellant did not apply. Insofar as appellant claimed that she
was not provided with adequate explanations regarding the termination
of her detail, the AJ found that the evidence showed that she was fully
informed of the circumstances, as well as of the attempts to retain her.
In its FAD, the agency adopted the RD. On appeal, appellant primarily
restates the arguments previously presented to, and considered by the
AJ, and also challenges the credibility of the testimony given by the
agency's witnesses.
However, after a careful review of the record, the Commission finds
that the RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that in general, the Commission
will not disturb the credibility determination of an AJ. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July 26,
1990). The Commission discerns no basis to disturb the AJ's findings here,
as such findings were based on a detailed assessment of the record and
the credibility of the witnesses. See Universal Camera Corp. v. NLRB,
340 U.S. 474, 496 (1951); and Watkins v. U.S. Postal Service, EEOC Request
No. 05910636 (September 19, 1991). Accordingly, after a careful review
of the record, including appellant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed, it is
the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEALRECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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
filed on the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations