01a03070
02-12-2001
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
01A03070
02-12-01
.
Mona L. Dogans,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A03070
Agency No. FW 97-40
Hearing No. 270-98-9107X
DECISION
On March 13, 2000, Mona L. Dogans (hereinafter referred to as complainant)
filed a timely appeal from the February 8, 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 bases of race/color (black), sex, and reprisal for
prior activity pursuant to Title VII when she received a rating of fully
satisfactory for the 1996 rating period.
Complainant filed her formal complaint on May 16, 1997, and following
an investigation, she requested a hearing. An EEOC Administrative Judge
(AJ) conducted a hearing and found no discrimination. The agency issued
a final order and agreed with the AJ.
As more fully described by the AJ, complainant worked as a Specialist,
Single Family Housing Division, in New Orleans. During 1996,
complainant's position was upgraded and new performance plans were issued;
the new plan for Specialists contained six elements. Complainant was
rated fully satisfactory (FS), receiving outstanding (O) in one element,
highly satisfactory (HS) in one element, and FS in four elements.
The comparison employee (white, male), who performed the same functions
as complainant, was given a HS rating, receiving O in two elements and
HS in four elements.
The AJ found that complainant established a prima facie case of
discrimination based on race/color and sex but did not establish a
prima facie case based on reprisal, having failed to establish a causal
connection between her activity and the FS rating.<2> Next, the AJ found
that the agency articulated legitimate, nondiscriminatory reasons for its
actions, i.e., that complainant's conduct was confrontational and that
she often balked at assignments, that she refused to attend important and
necessary training, and that she did not fully perform her job duties.
The AJ held that complainant failed to demonstrate pretext, finding that
complainant was properly rated by her supervisor, that her refusal of
training was not justified, that she did not show that her performance
merited a higher rating, and that complainant's supervisor was credible.
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 contends that she established a prima
facie case, that she was not clear about the effective date of the new
performance standards, that she was absent for much of the rating period,
and that her rating was in response to her whistle-blowing action and
union activity. First, complainant's contention that she was unclear
about her performance standards is inconsistent, given her union role
and access to information. Also, as stated by the AJ, whistle-blowing
activity is not a protected EEO basis. Finally, even assuming complainant
established a prima facie case on all protected bases alleged, we affirm
the decision of the AJ and find that the agency articulated a legitimate,
nondiscriminatory reason for its rating, in response to which complainant
did not demonstrate that the agency's reasons for its actions were based
on illegal considerations of race/color, sex, or retaliation.
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
__02-12-01________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.
2Among other reasons, the AJ noted that complainant's supervisor
testified that she was unaware of prior EEO activity, that complainant
had previously received Outstanding ratings during periods of EEO
activity, and that, for the most part, complainant's claims were based
on a claim of retaliation for whistle-blowing activity, which is not
an EEO protected basis. Nevertheless, the AJ found that the agency did
not take retaliatory action against complainant.