0120113756
08-23-2013
Rosalind Cross, Complainant, v. David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.
Rosalind Cross,
Complainant,
v.
David S. Ferriero,
Archivist of the United States,
National Archives and Records Administration,
Agency.
Appeal No. 0120113756
Hearing No. 560-2009-00222X
Agency No. 0905STL
DECISION
Complainant filed an appeal from the Agency's June 7, 2011, final order concerning her equal employment opportunity (EEO) complaint. She alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Analyst at the Agency's National Archives and Records Administration facility in St. Louis, Missouri.
On January 29, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (dark skin tone), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On or about November 4, 2008, Complainant learned that she was not selected for the position of GS-12 Management Analyst;
2. In November 2008, the Agency denied Complainant a desk audit; and
3. In November of 2008, the Agency retaliated against Complainant for filing the instant complaint when inaccurate statements were included in Complainant's performance appraisal.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on March 29, 2011, and issued a decision on May 9, 2011.
The AJ found with regard to claim one, that, the panel independently ranked the applicants at the conclusion of the interviews and selected the candidate ranked highest. The AJ also noted that Complainant herself testified that she did not believe that the selection was based on her race.
With regard to claim two (denial of Complainant's request for a desk audit), the AJ noted Complainant's admission that she did not present management with the documents to support her request and failed to file her request with the Office of Personnel Management.
Further, the AJ also concluded that Complainant had not established that she actually performed higher graded duties or had been aggrieved by the delay in responding to her requests for a desk audit and corrections to her position description.
With regard to claim three (that the supervisor retaliated against Complainant when she included inaccurate statements in Complainant's performance appraisal), the AJ concluded that the supervisor was not aware of any inaccuracies. The AJ also found that the supervisor had no knowledge of any prior EEO activity by Complainant at the time that the supervisor issued Complainant's performance appraisal.
Following the hearing, the AJ found that Complainant failed to establish that the Agency retaliated or discriminated against her, as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed.
ANALYSIS
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, at � VI.B. (November 9, 1999).
On appeal, Complainant challenges the administrative process, noting that the hearing transcript had errors. She also raised other privacy claims that were not the subject of her complaint and which are not before us on this appeal.
Title VII (at Section 717(a)) requires that all personnel actions affecting federal employees or applicants be made free from any unlawful discrimination. To prevail, Complainant would have to show that the Agency subjected her to an adverse employment action under circumstances that would support her claims of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). We recognize that the Agency's non-selection of Complainant for promotion, denial of a desk audit, and issuance of inaccurate statements in her performance appraisal after Complainant engaged in EEO activity, might support an inference of discrimination or retaliation. In this case, however, the supervisor was not aware of her EEO activity.
Further, there is insufficient evidence to support an inference of race or color discrimination based on the record before us. Rather, the record reflected that Complainant was not treated any differently than those who were ranked lower by the interview panel; and Complainant acknowledged that she did not believe that the non-selection was not based on her race.
The usual pattern of initial analysis may be dispensed with in this case since the Agency articulated legitimate reasons for its conduct. United States Postal Service v. Aikens, 460 U.S. 711, 713-717 (1983). To ultimately prevail, Complainant must prove by a preponderance of the evidence that the Agency's explanation is a pretext. Reeves v. Sanderson Plumbing Products, 530 US 133 (2000).
We discern no reason to disturb the AJ's decision. Our review of the record reveals that the AJ's findings of fact and conclusions of law are supported by a preponderance of the evidence. Complainant has not proven that the Agency discriminated against her, as alleged.
Accordingly, we AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 (S0610)
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 (Z0610)
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
August 23, 2013
__________________
Date
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0120113756
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113756