0120090909
04-22-2010
Mary T. Terrance, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service Office of Chief Counsel), Agency.
Mary T. Terrance,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service Office of Chief Counsel),
Agency.
Appeal No. 0120090909
Hearing No. 520-2006-00402X
Agency No. 062010
DECISION
On November 12, 2008, complainant filed an appeal from the agency's October 8, 2008 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked as a GS-13 Organizational Development Consultant (ODC) in the Center for Organizational Development within the agency's Human Capital Office at an agency facility in Hartford, Connecticut. In 2003, the agency reorganized its Human Capital Office nationwide and eliminate hundreds of positions. The Center for Organizational Development was reduced from thirty-four to ten employees. The agency decided to retain the GS-14 level employees first, and then the GS-13 level employees, based solely on their service computation date (CSD).
Complainant was not one of the six GS-13 ODCs eligible to be retained based on CSD. Therefore, consistent with the agency's personnel regulations, in May 2005, she received a Certificate of Expected Separation announcing that the agency planned to conduct a reduction in force (RIF) in October 2005. Complainant did not have assignment rights to any other position within her competitive area, but she was selected for a lateral reassignment to a GS-13 Administrative Officer position, which she accepted in August 2005.
On October 11, 2005, complainant filed a formal EEO complaint alleging that she was retaliated against when in July 2005 she was not allowed to retain her ODC position. Complainant identified the former Director of the Center as well as a manager as the individuals responsible for retaliating against her ("the RMOs"). At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ, after denying the agency's motion for summary judgment, held a hearing on April 10-11, 2008 and issued a decision on September 30, 2008.
The AJ found that complainant had engaged in prior protected activity in 2000 when she was one of six female ODCs who alleged a violation of the Equal Pay Act. Complainant's complaint was settled in November 2001. The AJ found that the RMOs were aware of her prior protected activity. The AJ determined that although not identified as the responsible management officials, the RMOs were engaged, to some degree or another, with the complaint and the settlement process. However, the AJ noted that neither of these two individuals exercised decision making authority with regard to the RIF.
The AJ further found that the elimination of complainant's position in Hartford constituted adverse treatment but that complainant did not establish a causal nexus between her prior protected activity and the elimination of her position. The AJ noted that complainant attempted to establish this nexus through evidence of a series of allegedly retaliatory incidents including the denial of training, a lowered performance rating, an issue with time cards and an intimidating comment - all involving the RMOs. The AJ found that "the record lacked credible evidentiary support" that these incidents were in fact unlawfully motivated, and he noted that complainant never initiated EEO contact in response to them. Furthermore, the AJ was not persuaded that the RMOs had significant influence with the agency individuals charged with implementing and overseeing the RIF.
Consequently, the AJ concluded that complainant did not establish a prima facie case of retaliation. The AJ further found that even if assuming arguendo she did so, the agency had articulated legitimate and nondiscriminatory reasons for not permitting complainant to retain her ODC position, namely that her service computation date did not qualify her for retention and that consistent with the RIF's operating terms, she could not bump someone outside of her competitive area. The AJ found that complainant's only effort to establish pretext was through the examples of the conduct he previously found insufficient to support an inference of retaliation. The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that she was retaliated against.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Upon review of the record and complainant's arguments on appeal, we discern no basis to disturb the AJ's decision because his findings of fact are supported by substantial evidence in the record. Complainant, through counsel, submitted a brief accusing the AJ of "failing to address" evidence, most of which he did in fact address or arguing that he failed to appreciate its relevance to complainant's prima facie case. The AJ rejected complainant's argument that: (1) the RMOs engaged in retaliatory conduct towards complainant after she filed the EPA complaint in 2000; (2) their actions affected her eligibility for retention; and (3) the RMOs played a significant role in determining which of the OCDs would be retained during the 2005 RIF. Two of the other women who filed EPA complaints that were practically identical to the one complainant filed were also two of the six GS-13 ODCs retained. This evidence further operates to defeat any inference of retaliatory motivation. The Commission is not persuaded that the agency's inability to retain her ODC position after the reorganization was the result of unlawful retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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
April 22, 2010
__________________
Date
2
0120090909
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013