01a55694
11-02-2005
Sonia E. Lujan, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Sonia E. Lujan v. Department of Defense
01A55694
November 2, 2005
.
Sonia E. Lujan,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A55694
Agency No. DFAS-DE-DENV-03-027
Hearing No. 320-2004-00268X
DECISION
Complainant timely initiated an appeal from the agency's final order
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Systems Accountant at the agency's
Defense Finance and Accounting Service Center, Military Pay Department
in Denver, Colorado, filed a formal EEO complaint on May 30, 2003. She
alleged that the agency discriminated against her on the bases of national
origin (Hispanic)<1> and in reprisal for prior EEO activity when:
(1) the agency subjected her to harassment based on incidents which
occurred from October 2001 through March 2003;<2>
complainant was not allowed to work overtime or accumulate credit hours;
complainant did not receive a within grade increase;
complainant was placed on a performance improvement plan (PIP) just
after she was due a promotion to a GS-11;
complainant was not allowed to use the chain of command to contest her
change to a lower grade.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of
race discrimination in that she alleged a co-worker, who appeared to be
Caucasian but was Hispanic, was treated more favorably. The AJ also found
that complainant established a prima facie case of retaliation because she
had informed a manager and a supervisor that she was being subjected to
harassment and discrimination. Subsequent to that time, several incidents
and the adverse actions about which complainant complains, occurred.
The AJ found that with respect to the amount of training complainant
received, she received about the same amount as others in the office even
though it may not have been enough to prepare complainant for her job.
According to the testimony of other employees, the AJ determined that the
culture of the office resulted in employees having to learn their jobs
virtually on their own. Also, others of different races or national
origins confirmed that complainant's trainer yelled at them and was
arrogant in his approach to them. Based on this testimony, the AJ
concluded that complainant's trainers were more likely frustrated with
complainant's slow progress than the fact that she was Hispanic or had
filed an EEO complaint.
Turning to complainant's other claims, the AJ found that the agency
stated legitimate nondiscriminatory reasons for the actions that it took.
Specifically, the AJ found that the evidence suggested that complainant
did not have the background in, or the talent for, the systems work
for which she was responsible. Complainant's supervisors' actions in
denying her a within grade increase and placing her on a PIP were due
to their criticisms of her work and what they perceived as her poor work
performance. The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred in not crediting the
statements of certain employees and in not giving them more weight in
her findings. In particular, complainant points to the AJ's finding
that complainant's trainer was not patient with her and was unwilling
or unable to provide her with the intensive training she needed.
Complainant argues that no other employee was denied training in the
manner in which she was.
Complainant urges the Commission to overturn the AJ's finding that
the agency did not retaliate against her. She argues that the close
temporal proximity of the events to her EEO activity compels the finding
of retaliation. The agency submitted no additional comments on appeal.
ANALYSIS AND FINDINGS
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision was a correct application of the appropriate
regulations, policies, and laws. The AJ determined that complainant
failed to demonstrate that the agency's reasons for taking the actions
in question were untrue or just a pretext for discrimination. That is,
complainant did not dispute that she had difficulty in performing the
tasks of her new job as a Systems Accountant which more likely than
not, was the reason for the denial of her within grade increase and
her placement on a PIP. In addition, the evidence supported the AJ's
conclusion that her trainer may have been rude and arrogant in his manner
towards her but that he treated others outside of her protected class
in the same manner.
For these reasons, we discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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
November 2, 2005
Date
1Complainant alleged discrimination based on
race (Hispanic) which we interpret as her national origin and she also
alleged discrimination based on color which she identified as �Hispanic.�
2Complainant alleged that she was denied adequate training for her
position and that several incidents occurred during training in which
her trainers called her �stupid,�yelled at her, and threatened her that
she would not receive a promotion among other things.