0520110705
12-20-2011
Tina M. Flynn, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Tina M. Flynn,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Request No. 0520110705
Appeal No. 0120092989
Hearing No. 470-2008-00103X
Agency No. F-07-6275
DENIAL
Complainant timely requested reconsideration of the decision in Tina
M. Flynn v. Department of Justice, EEOC Appeal No. 0120092989 (August
4, 2011). 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.
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,
in pertinent part, that the Agency discriminated against her on the
basis of reprisal for prior protected EEO activity when, on June 22,
2007, she was terminated from her Intelligence Analyst position during
her probationary period.
The appellate decision affirmed the Agency’s final order, which
implemented an EEOC Administrative Judge’s (AJ) finding of no
discrimination. The appellate decision found that substantial evidence
in the record supported the AJ’s finding that Complainant failed to
establish that the legitimate, nondiscriminatory reasons articulated by
the Agency were a pretext for retaliation.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant made two arguments.
First, Complainant argued that the Commission should sanction the Agency
pursuant to
29 C.F.R. § 1614.404(c), for its delay in submitting her complaint file.
Complainant noted that she filed her appeal in July 2009, but the Agency
did not submit her complaint file to the Commission until October 2010.
Second, Complainant argued that the AJ and the appellate decision erred in
finding that the Agency’s reasons were not a pretext for retaliation.
Complainant asserted that the AJ found that the Agency’s stated reason
for her termination – poor performance – lacked credibility. In
support of her assertion, Complainant cited the AJ’s factual findings,
based on the record evidence, that she did not have performance problems.
Complainant contended that such a showing of pretext, along with a prima
facie case, was sufficient to prove discrimination.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant’s request for reconsideration does
not establish 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.
Regarding Complainant’s first argument, we note that 29 C.F.R. §
1614.404(c) permits, but does not compel, the Commission to issue a
sanction when an agency fails without good cause shown to comply with the
requirements of this section. Specifically, we refer to the “shall,
in appropriate circumstances” language in 29 C.F.R. § 1614.404(c).
Here, Complainant has not shown that the appellate decision clearly
erred when it exercised its discretion to not sanction the Agency for
its late submission of her complaint file.
Regarding Complainant’s second argument, we note that the Supreme
Court has held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer’s explanation
for its actions is not credible. See St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993). The Court, however, made clear that a fact
finder may find discrimination in such circumstances. Id. at 524.
The critical factor is that a fact finder must be persuaded that it
was discrimination that motivated the employer to act as it did. Id.
Even if the employer’s explanation lacks credibility, discrimination
will not be found if the evidence affirmatively demonstrates that the
employer’s real motivation was not a protected EEO trait, but something
not covered by the laws enforced by the EEOC. See EEOC Compliance
Manual Section 15, “Race and Color Discrimination,” No. 915.003,
at V.A.2. (Apr. 19, 2006).
Here, Complainant has not shown that the appellate decision clearly
erred in upholding the AJ’s finding of no discrimination. While
the AJ determined that “the record did not show substantially that
[Complainant] as a new employee had work related performance problems,”
the AJ found that “[t]he record revealed that [Complainant] was
terminated pursuant to the March 15th letter from [the Supervisory
Special Agent] to [the Special Agent] concerning [Complainant]’s
alleged misconduct with [the IT Specialist].” AJ Decision, at 57,
84-85. Moreover, the AJ found that Complainant “provided no credible
evidence showing that [her EEO activity] prompted the Agency to terminate
[her].” Id. at 85. The AJ clearly found that, although Complainant
did not have performance problems as stated in the termination letter, the
Agency terminated Complainant for reasons unrelated to her EEO activity.
Complainant has not established that the Agency’s explanation for
her termination was a pretext designed to hide a retaliatory motive.
See EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003,
at II.E.2. (May 20, 1998).
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. 0120092989 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 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
__12/20/11________________
Date
2
0520110705
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110705