0520120603
01-31-2013
Sharon Camden, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Sharon Camden,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Request No. 0520120603
Appeal No. 0120093506
Hearing No. 510-2008-00395X
Agency No. F-07-6344
DENIAL
Complainant timely requested reconsideration of the decision in Sharon Camden v. Department of Justice, EEOC Appeal No. 0120093506 (July 27, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when, on or about March 2, 2007, it removed her from the Part-Time Agent Program (PTAP).1
The appellate decision affirmed the Agency's final order, which implemented an EEOC Administrative Judge's finding of no discrimination. Specifically, the appellate decision found that the Agency articulated a legitimate, nondiscriminatory reason for removing Complainant from the PTAP; namely, the Agency's TDY program and rotational policy resulted in a need for more full-time agents in the Jacksonville office, which an inspection audit had rated "Effective but Inefficient" due to insufficient staffing.
Moreover, the appellate decision found that Complainant failed to prove that the Agency's reason was a pretext for unlawful discrimination. In her appeal, Complainant argued that the Agency could have done other things to alleviate the agent shortage, such as rescinding an agent's commuting arrangement or asking for additional TDY transfers from other offices. In response to that argument, the appellate decision noted that, although there may have been alternative ways for the Agency to respond to its need for more full-time agents, the Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." In her appeal, Complainant also argued that the Agency failed to provide pertinent evidence for the record, such as a copy of the audit. In response to that argument, the appellate decision noted Complainant's acknowledgment that she was a "casualty" of the TDY program and the rotational policy for newly-hired agents that negative impacted staffing in the Jacksonville office. The appellate decision determined that Complainant's acknowledgment corroborated the Agency's explanation for her removal from the PTAP.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant contended that the appellate decision clearly erred in two ways. First, Complainant argued that the appellate decision misapplied the law when it stated that the Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Complainant asserted that, according to Supreme Court precedent, a fact finder is free to find that discrimination has occurred if it is proven that the reason articulated by the agency is false, without further evidence of unlawful discrimination. Complainant asserted that the appellate decision's statement seems to indicate that a fact finder has to first find evidence of a demonstrably discriminatory motive before moving on to a pretext analysis and that no such hurdle exists. Second, Complainant argued that the Agency failed to produce a copy of the audit upon which it had relied to remove her from the PTAP. Complainant explained that she had no reason to dispute the audit's finding that the Jacksonville office was "Effective but Inefficient," but asserted that the record should contain a copy of the audit in order to ascertain whether it contained recommendations to remedy the problem that did not involve removing her from the PTAP.
In opposition, the Agency argued that Complainant failed to meet the criteria for reconsideration. Regarding Complainant's first argument, the Agency asserted that the appellate decision did not place an additional hurdle for her to clear before moving to a pretext analysis, but simply stated that it would not second-guess the Agency's business decision absent a demonstratively discriminatory motive. Regarding Complainant's second argument, the Agency asserted that the fact that the audit may or may not have included certain recommendations does not negate the fact that management needed to reallocate personnel in order to rectify deficiencies in the Jacksonville office. Moreover, the Agency asserted that Complainant produced no evidence to show that this reason - the need to reallocate personnel in order to rectify program deficiencies - was untrue.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Here, we find that Complainant has not shown that the appellate decision clearly misapplied the law when it stated that the Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Although Complainant asserted that this statement creates an additional hurdle for her to clear, we disagree. Our review of the appellate decision reflects that it properly applied the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) when it initially found that the Agency articulated a legitimate, nondiscriminatory reason for removing her from the PTAP and then subsequently found that Complainant failed to show that the reason was a pretext for discrimination. As part of its pretext analysis, the appellate decision determined that, even if the Agency had alternative ways to alleviate the agent shortage, that fact alone (without a discriminatory motive) was insufficient to establish pretext. We note that the Commission has made identical or similar statements in previous decisions to emphasize that the fact finder must focus on the employer's motivation, not its business judgment, when analyzing personnel decisions. See Glass v. U.S. Postal Serv., EEOC Appeal No. 07A50068 (June 15, 2006); Thomas v. Dep't of Transp., EEOC Appeal No. 01945798 (Dec. 12, 1996).
As to the argument that the record was not adequately developed because the Agency failed to produce a copy of the audit, we find that Complainant previously raised this argument on appeal and that the appellate decision explicitly addressed this argument. We decline to revisit this argument now and remind Complainant that a "request for request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, VII.A. (Nov. 9, 1999).
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120093506 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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 attorneywith 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
__1/31/13________________
Date
1 Complainant also alleged that the Agency denied her request for leave without pay, ostracized her by not giving her certain assignments, and asked awkward and extensive questions regarding her breastfeeding methods. The appellate decision found no discrimination with respect to those claims. We will not address them here, as Complainant's request for reconsideration focused on her removal from the PTAP.
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0520120603
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013