01a34314_r
10-12-2004
Janet M. Williams, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Janet M. Williams v. Department of Commerce
01A34314
October 12, 2004
.
Janet M. Williams,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A34314
Agency Nos. 99-54-00310 & 99-54-00804
Hearing No. 120-A0-3076X
DECISION
The record indicates that complainant filed an appeal from the agency's
final action dated June 16, 2003, concerning her complaints of unlawful
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. In her
complaints, complainant, a Facilities Management Specialist, GS-1640-13,
with the Facilities Management Division (FMD), Acquisition, Grants,
and Facilities Services Office, Office of Finance and Administration
(OFA), alleged that she was discriminated against in reprisal for prior
EEO activity when she was suspended from June 7-10, 1999, and when she
was subjected to a hostile work environment beginning in April of 1998.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ, after a hearing, issued a decision finding no discrimination,
which was implemented by the agency in its final action.
The AJ determined that, assuming arguendo that complainant had established
a prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged suspension. Initially,
the AJ noted that the Director, Office of Acquisition, Grants, and
Facilities Services, issued a decision on May 25, 1999, to suspend
complainant for four days because she was negligent when she signed
three separate contracts, Orders for Supplies or Services (Optional Form
347s), worth $490,000, for which she did not have authority to sign and
was negligent regardless of her authority because the contracts did
not meet the criteria of the Federal Acquisition Regulations and the
Competition in Contracting Act and complainant's conduct demonstrated
untrustworthiness or reliability. Specifically, the Director stated
that complainant admitted that she did not closely review the documents
and she was not sure she had the authority to sign them.
With regard to the alleged harassment, the AJ noted that complainant's
former supervisor made the alleged assignment in or around July or
August 1998, because complainant had listed relevant experience on her
SF-171 form. Regarding her reassignment on June 14, 1999, complainant
claimed that she moved her belongings on that day in accordance with
an electronic mail message dated June 9, 1999, but her then supervisor
complained about her moving her belongings. The agency stated that on
that same evening, complainant was called by her new supervisor's deputy
and was told to report to her new supervisor and not to return to her
former supervisor/workstation. The agency also stated that despite the
same electronic mail message informing complainant that the office space
for the purpose of the reassignment would be worked out at a later date,
the mix-up was caused by her taking it upon herself to move her desk.
Regarding other alleged harassment, the AJ noted that there was no
evidence to corroborate complainant's testimony that her former supervisor
yelled at her, slammed his fists on the desk, monitored her whereabouts
more closely than he did others, discredited her throughout the agency,
and even stalked her. The AJ determined that complainant failed to
present probative evidence that she was harassed as a result of her
EEO activity. The AJ also determined that the actions complained of
did not, either singly or in combination, rise to the level of creating
a hostile work environment.
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.
The Commission finds that the AJ's factual findings of no discriminatory
intent is supported by substantial evidence in the record.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
hereby AFFIRMED because 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
October 12, 2004
__________________
Date