Tina M. Flynn, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionDec 20, 2011
0520110705 (E.E.O.C. Dec. 20, 2011)

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.

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,

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

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0520110705

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520110705