01991523
03-13-2002
Josefa Dominguez, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Josefa Dominguez v. Department of Justice
01991523
March 13, 2002
.
Josefa Dominguez,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01991523
Agency Nos. I-95-6764, I-96-6882
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her two complaints of unlawful employment discrimination
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, as amended, 29 U.S.C. � 621 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged in her first
complaint that she was discriminated against on the bases of her race
(Hispanic), sex (female), and age (fifty-four at the time of the agency
actions at issue), and that she was retaliated against for her prior
equal employment opportunity (EEO) activity, when, on June 22, 1995,
she was notified that her annual leave had been cancelled; on June 23,
1995, she was notified that she would be required to attend a mentoring
program because her second-line supervisor (S2) was not pleased with
her managerial skills; and on August 21, 1995, upon her return from
participating in the mentoring program, she was not reinstated to her
supervisory position. Complainant alleged in her second complaint that
she was retaliated against for her prior EEO activity when, on October
30, 1995, S2 lowered her performance rating from �Outstanding� to �Fully
Successful.�
In its FAD, the agency concluded that the record did not support
complainant's claims of discrimination. It noted that the agency
articulated legitimate, nondiscriminatory reasons for its actions, and
that complainant had failed to establish that these reasons were merely
pretext for unlawful discrimination. On appeal, complainant contends
that the agency's reasons for her being placed in the mentoring program
are in conflict with the mentoring program official's assessment of
her work unit's performance, which found that the �singular concern� in
complainant's work unit was a lack of personnel rather than any managerial
deficiencies. She also disputes the testimony of S2 and the Supervisory
District Adjudications Officer (SDAO) who assumed complainant's duties
during complainant's placement in the mentoring program. Both S1 and
SDAO stated in their affidavits to the EEO investigator that complainant
resumed her full duties and assumed her full responsibilities when
she returned from the mentoring program. Complainant claims, without
presenting any corroborating evidence, that this was not the case, as she
had no direct supervisory authority upon her return from the mentoring
program assignment. Complainant also challenges the agency's assertion
that she was merely a �Fully Successful� employee, as she argues the
agency's failure to place her in a performance improvement plan or provide
her with �formal documented supervisory counseling sessions� belies its
assertion that she is a �substandard� (complainant's term) employee.
We cannot agree that complainant has established by a preponderance of the
evidence that the agency's justifications for its actions were pretextual.
The agency presented evidence that S2 had received numerous complaints
about complainant's inconsistent assignments to her subordinates, and
that S2 believed the mentoring program would help alleviate this problem.
As for the remainder of complainant's arguments, they neither sufficiently
rebut the body of evidence presented by the agency in support of its
proffered legitimate, nondiscriminatory reasons for its actions, nor
evince any discriminatory animus on the part of the agency based upon
complainant's race, sex, age, or prior EEO activity.
Accordingly, we conclude that complainant has failed to present evidence
sufficient to carry her �ultimate burden of persuading the trier of
fact that the [agency] intentionally discriminated against [her]� on the
basis of her race, sex, age, or prior EEO activity. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Therefore, 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 FAD because a preponderance
of the evidence of record 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
March 13, 2002
Date