05A20657
09-18-2002
Janice Washington, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Janice Washington v. Department of Defense
05A20657
September 18, 2002
.
Janice Washington,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Request No. 05A20657
Appeal No. 01A20713
Agency No. 99-EAS-PG-026
DENIAL OF REQUEST FOR RECONSIDERATION
Janice Washington (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Janice Washington v. Department of Defense, EEOC Appeal
No. 01A20713 (March 12, 2002). EEOC Regulations provide that the
Commission may, in its discretion, 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).
After a review of complainant's request for reconsideration, 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).
Complainant alleged that she was discriminated against on the bases of
race (Black) and sex (female) when she was suspended for three calendar
days in April, 1999. The agency gave as its reason for suspending
complainant that she was insubordinate to her supervisor. At a hearing
before an EEOC Administrative Judge (AJ) the parties presented evidence
concerning the incident during which the alleged insubordination took
place including the testimony of complainant and her supervisor. In her
recommended decision the AJ found as a fact that complainant's behavior
was insubordinate and concluded that complainant had failed to prove
race or sex-based discrimination. That decision was implemented by the
agency and affirmed by the Commission in the previous decision.
In her request for reconsider, complainant essentially concedes that she
was insubordinate but maintains that she should not have been punished
for her behavior. Imposition of an excessive punishment might, under
some circumstances, be shown to be a manifestation of discriminatory
animus but, in this case, complainant was unable to persuade the AJ
that this was the case. 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). Here,
the AJ's finding with respect to discriminatory intent was supported
by substantial evidence, i.e., the testimony of the agency officials
involved. We see no reason not to uphold it.
For the foregoing reasons, it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 01A20713 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
September 18, 2002
__________________
Date