01a04350
02-02-2001
Mona L. Dogans, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Mona L. Dogans v. Department of Housing and Urban Development
01A04350
02-02-01
.
Mona L. Dogans,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A04350
Agency No. FW 96-30
Hearing No. 270-97-9162X
DECISION
On June 8, 2000, Mona L. Dogans (hereinafter referred to as complainant)
filed a timely appeal from the March 27, 2000, final order of the
Department of Housing and Urban Development (hereinafter referred to as
the agency) concerning her complaint 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. The appeal is timely filed (see 29 C.F.R. �
1614.402(a))<1> and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the basis of reprisal for prior Title VII activity when she was
issued a "Record of Discussion" on April 24, 1996.
Complainant filed a formal complaint and, after an investigation,
requested a hearing before an EEOC Administrative Judge (AJ). The AJ held
a hearing on June 30, 1998, finding no discrimination. Complainant now
appeals from the agency's final order adopting the AJ's decision.
Complainant worked as a Specialist in the Single Family Housing Division,
in New Orleans. The AJ found that the agency did not discriminate
against complainant in reprisal when she was issued a Record of
Discussion concerning her failure to properly sign in and sign out.
All staff, including complainant, were notified about sign in/sign
out procedures, complainant did not comply on several occasions, and
her supervisor issued her a Record of Discussion.<2> In his decision,
the AJ rejected complainant's arguments that she raised an inference
of discrimination, and he credited the agency's testimony finding that
it articulated a legitimate, nondiscriminatory reason that complainant
failed to demonstrate was pretextual.
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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
In her appeal, complainant gave reasons why she did not properly sign
in or sign out as charged and asserts that the Record of Discussion was
in retaliation for her position in the union, that other employees who
did not follow procedures were not issued Records of Discussion, and
that the supervisor fabricated evidence. The record does not support,
nor does complainant demonstrate, that any of these contentions are true
or credible or that the agency's actions were based on illegal factors,
and she does not deny that she failed to sign in/sign out as directed.
Based on our review of the record and all material submitted on appeal,
we agree with the AJ and find that the agency did not discriminate
against complainant.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
___02-02-01_______________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2As explained in the record, a Record of Discussion consisted of a notice
that was retained in an employee's file for three years and could support
future discipline.