01A22259
07-16-2003
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
01A22259
July 16, 2003
.
Mona L. Dogans,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A22259
Agency Nos. FW-96-37R; FW-98-20; FW-98-21; FW-98-30;
FW-98-31; FW-99-05; FW-00-16; FW-00-19
Hearing Nos. 270-99-9119X; 270-99-9211X; 270-A0-9028X; 270-A0-9013X;
270-A0-9016X; 270-A1-9104X; 270-A1-9131X; 270-A1-9132X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) complaint 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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final action.
The record reveals that complainant filed 20 formal complaints between
1991 and 2001, alleging that the agency discriminated against her in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant was informed of her right to request hearings before an EEOC
Administrative Judge (AJ) in the eight pending cases, or alternatively, to
receive final decisions by the agency. Complainant requested a hearing,
and the cases were consolidated.<1> The parties subsequently agreed that,
due to the large volume of cases, complainant would select her �best and
strongest� case (Hearing No. 270-99-9211X) to be heard at the hearing.
The record reveals, however, that complainant and her counsel did not
appear for the hearing. The agency moved for dismissal of all of the
claims, on the grounds that complainant's failure to appear for her
�best and strongest� claim should be construed as an abandonment of all
her claims. Complainant's attorney did not contest the dismissal of her
�best and strongest� claim but urged that the other claims should not be
dismissed. The Administrative Judge determined that it was appropriate
to issue a decision without a hearing. See 29 C.F.R. � 1614.109(g).
Consequently, the Administrative Judge decided complainant's remaining
claims that she was discriminated against on the bases of race (Black),
color (medium-brown complexion), (sex (female), disability (allergies
and sinus problems), and in reprisal for prior EEO activity with regard
to the following:<2>
Four non-selections, of which complainant was notified on March 27, 1998;
One non-reassignment, of which complainant was notified on July 10, 1998;
Three non-selections, of which complainant was notified on June 20, 1998;
Six non-selections, of which complainant was notified on April 1, 1998;
One non-reassignment, of which complainant was notified on January
20,1999; and
Four non-selections, of which complainant was notified on February 28,
March 17, April 19, and May 19, 2000, respectively.<3>
The AJ found that complainant failed to establish a prima facie case of
discrimination in that she failed to show that she is an individual with
a disability pursuant to the Rehabilitation Act. The AJ nevertheless
assumed arguendo that complainant established a prima facie case
of disability discrimination as well as on the other alleged bases
(race, color, religion, sex and reprisal), and found that the agency
articulated legitimate, nondiscriminatory reasons for the non-selections
and non-reassignments. Specifically, the selectees were better qualified
than complainant for the positions at issue. The AJ additionally noted
that as to certain positions (1) complainant did not establish that a
vacancy existed; and/or (2) complainant did not establish that a selection
was made; and/or (3) complainant did not identify similarly-situated
individuals, not in her protected classes, who were treated more favorably
under similar circumstances; and/or (4) complainant did not show that
she was eligible to apply for the positions. The AJ then found that
complainant failed to establish, by a preponderance of the evidence,
that the agency's reasons were pretexts for unlawful discrimination.
The record reveals that the agency failed to issue a final order within
40 days of receiving the AJ's decision. Therefore, pursuant to 29
C.F.R. � 1614.109(i), the AJ's decision became the final agency action.
Complainant raises no new arguments on appeal.
After a review of the record in its entirety, we find that a decision
without a hearing was appropriate because no genuine dispute of material
fact exists. Moreover, we find that the AJ's decision properly and
accurately summarized the relevant facts, and referenced the appropriate
regulations, policies and laws. Further, construing the evidence to be
most favorable to complainant, we find that complainant did not present
any evidence from which a reasonable fact-finder could conclude that the
agency's actions were motivated by discriminatory or retaliatory animus.
Accordingly, for the reasons set forth above, the Commission AFFIRMS
the agency's final action.
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
July 16, 2003
__________________
Date
1 Twelve of those complaints were closed prior to the issuance of the
AJ's decision.
2 The AJ initially noted that complainant also alleged that certain
actions of the agency were motivated by antipathy resulting from
complainant's union activities.
3 Complainant also alleges discrimination based on religion (Catholic)
as to these non-selections.