01970121
01-20-1999
Vi Odell Mays, Appellant, v. Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corporation, Agency.
Vi Odell Mays v. Federal Deposit Insurance Corporation
01970121
January 20, 1999
Vi Odell Mays, )
Appellant, )
) Appeal No. 01970121
v. ) Agency Nos. FDIC-95-014
) FDIC-95-027
Donna A. Tanoue, ) EEOC Nos. 310-96-5067X
Chairperson, ) 310-96-5068X
Federal Deposit Insurance )
Corporation, )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts
this appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal complaint of discrimination in which she alleged
discrimination on the basis of reprisal (prior EEO activity), when she:
(1) was not selected for the position of Senior Administrative Assistant,
LG-308-8, Southwest Service Center's Legal Division, posted under Vacancy
Announcement No. LD-SWSC-001; and (2) was subjected to the following acts
of harassment: (a) on January 24, 1995, the Regional Manager ordered
her to report to the Contracting Oversight Management Branch (COMB) in
downtown Dallas, Texas, instead of allowing her to remain at the North
Dallas office until the COMB was relocated there on February 27, 1995; and
(b) during the week of January 16, 1995, her immediate Supervisor relieved
her of her Administrative Assistant duties and responsibilities, denied
her the opportunity to work overtime, and to receive an incentive award,
which was given to those employees who were allowed to work overtime.
The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission administrative judge
(AJ). A hearing was conducted on March 5, 1996.
On May 30, 1996, the AJ issued a recommended decision (RD) finding no
discrimination. The AJ concluded that appellant failed to establish
a prima facie case of discrimination when she was not selected for
the position. Specifically, appellant failed to prove that either the
Administrative Assistant (AA), who conducted the pre-qualification
screening, or the Administrative Officer (AO), who reviewed the
applications, conducted the interviews and made the recommendation to
the Regional Counsel, were aware of her prior EEO activity at the time
the AO made the recommendation not to select appellant. Furthermore,
the AJ found that appellant failed to establish a causal nexus between
her prior EEO activity and the decision not to select appellant for
the position. Although the evidence revealed that the AO spoke with
appellant's prior Supervisor, who was aware of appellant's EEO activity,
the AJ found no evidence to suggest that the prior Supervisor gave false
testimony in an effort to retaliate against appellant.
The AJ also found that appellant failed to establish a prima facie case of
reprisal discrimination with respect to the Regional Manager's decision
to have appellant report to the COMB office, in that she failed to show
the required causal nexus between her prior EEO activity and the action
at issue. Although the Regional Manager was aware of appellant's prior
EEO activity, there was no evidence that he harbored any ill feelings
towards appellant based on her prior EEO activity. With respect to
appellant's allegation regarding the reassignment of her duties, and the
denial of overtime and the incentive award, the AJ found that appellant
had failed to establish a prima facie case in that she failed to show
the required causal nexus between the actions and her prior EEO activity.
The AJ found that the agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, both the AA and the AO testified
that appellant was not recommended for the position because of negative
comments she made about her Supervisor during the interview, which they
testified were inappropriate given the interview setting. Furthermore,
the AO testified that she did not believe appellant would "fit in"
with the group she would be working with. This belief was confirmed by
appellant's prior Supervisor, who testified appellant was not a "team"
worker. After hearing the recommendations from the AA and the AO,
the Regional Counsel decided not to fill the position at that time.
With respect to the decision to have appellant report to the downtown
Dallas office, the record revealed that in 1994, the agency underwent
a reorganization due to downsizing. Pursuant to a union/management
agreement, appellant was offered, and accepted, a position in COMB,
where she was supposed to report on January 23, 1995. Prior to her
reporting date, appellant told the Regional Manager that the commute
was going to create a hardship on her. The Regional Manager testified
that when informed of her commuting problems, he attempted to resolve
the situation by offering appellant a Secretarial position in the North
Dallas office. Appellant refused the position and reported to the COMB
position on January 24, 1995. She was later offered, and accepted a
position in the North Dallas location, effective February 27, 1995. Thus,
appellant commuted to the downtown office for approximately one month.
With respect to her remaining allegations, appellant's Supervisor
testified that appellant's duties were removed about a week before she
was reassigned. The Supervisor testified that she needed to work the
other employees into appellant's position in order to ensure a smooth
transition. With respect to the overtime assignment, the Supervisor
testified that she asked employees to work overtime on January 28, 1995.
Since appellant was no longer assigned to the personnel unit, she was
unable to work the overtime. The Supervisor also testified that she
did not know at the time she requested the overtime that she would award
the incentive award.
The AJ noted that based on the consistency of their testimony, as well
as their demeanor at the hearing, the Supervisor, AA, AO, and Regional
Manager, were all credible witnesses. In sum, the AJ found that in light
of appellant's failure to establish a prima facie case on any allegation,
as well as the agency's articulation of legitimate, nondiscriminatory
reasons, she concluded that appellant was not discriminated against,
as alleged.
On August 23, 1996, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
After reviewing the record, we find that the AJ's RD summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. We note that appellant failed to present evidence that
any of the agency's actions were in retaliation for her prior EEO
activity. We therefore discern no basis to disturb the AJ's finding
of no discrimination which were based on a detailed assessment of the
credibility of the witnesses. See Gaithers v. United States Postal
Service, EEOC Request No. 05890894 (November 9, 1989); Wrenn v. Gould,
808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer City, 470
U.S. 564, 575 (1985). Therefore, after a careful review of the record,
including appellant's contentions on appeal and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan 20, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations