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4,991 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a05796.txt | 01a05796.txt | TXT | text/plain | 10,347 | Victor Walton v. Department of Veterans Affairs 01A05796 February 14, 2001 . Victor Walton, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. | February 14, 2001 | Appeal Number: 01A05796
Legal Analysis:
the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Social Worker at the agency's
Battle Creek, Michigan Medical Center, filed a formal EEO complaint with
the agency on May 25,1999, alleging that the agency had discriminated
against him as referenced above. At the | Victor Walton v. Department of Veterans Affairs
01A05796
February 14, 2001
.
Victor Walton,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05796
Agency No. 993068
Hearing No. 230-A0-4072X
DECISION
Victor Walton (complainant) timely initiated an appeal from the agency's
final order concerning his equal employment opportunity (EEO) complaint of
unlawful discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.<1> The appeal
is accepted pursuant to 29 C.F.R. § 1614.405. Complainant alleges he was
subjected to discrimination on the basis of race (Black) when, on April
27, 1999, management asked him to sign a six month extension of a Last
Chance Agreement instead of terminating him for breaching that agreement.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Social Worker at the agency's
Battle Creek, Michigan Medical Center, filed a formal EEO complaint with
the agency on May 25,1999, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of race
discrimination because he, the only Black social worker, was required
to follow certain procedures for signing in and submitting work that
other social workers were not required to follow. The AJ also noted
that one co-worker testified that complainant was treated more harshly
than his white colleagues.
The AJ further concluded that the agency articulated a legitimate,
nondiscriminatory reason for its actions. The AJ found that complainant
was given a proposed removal on June 23, 1998 for being absent without
leave (AWOL) and failure to follow leave procedures. In lieu of removal,
complainant signed a LCA in which he agreed to follow the appropriate
leave procedures and, in general, follow the instructions of management
officials for one year. On October 5, 1998, complainant was given a
written counseling by his Coordinator for failure to submit patient
encounter information in a timely fashion. On January 11, 1999,
complainant's Coordinator was informed that complainant was still
not submitting the encounter forms on a daily basis. Subsequently,
on March 5, 1999, the Director of the Medical Center gave complainant a
notice of removal for failure to adhere to the terms of the LCA in that,
despite numerous requests, complainant was not submitting the encounter
forms as required. After complainant filed a grievance claiming that the
situation was simply due to miscommunication, the notice of removal was
mitigated to a six month extension of the LCA.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reason was a pretext to mask unlawful
discrimination. The agency's final order implemented the AJ's decision.
Complainant makes no contentions on appeal, and the agency requests that
we affirm its final order.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Commission regulations allow an AJ to
issue a decision without a hearing when he or she finds that there is no
genuine issue of material fact. This regulation is patterned after the
summary judgment procedures set forth in Rule 56 of the Federal Rules
of Civil Procedure. Summary Judgment is proper when material facts are
not in genuine dispute. 20 C.F.R. § 1614.109(g). Only a dispute over
facts that are truly material to the outcome of the case should preclude
summary judgment. See Anderson v. Liberty Lobby, Inc., 277 U.S. 242,
248 (1986) (only disputes over facts that might affect the outcome of
the suit under the governing law, and not irrelevant or unnecessary
disputes, will preclude the entry of summary judgment). For example,
when a complainant is unable to set forth facts necessary to establish one
essential element of a prima facie case, a dispute over facts necessary to
prove another element of the case would not be material to the outcome.
See Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
at 7-15, November 9, 1999. The Commission will apply a de novo standard
of review when it reviews an AJ's decision to issue a decision without
a hearing pursuant to 29 C.F.R. § 1614.109(g). See EEO-MD-110, at 9-16.
As an initial matter, we note that despite being given the opportunity
to do so, complainant failed to assert that this case involves genuine
issues of material fact. Moreover, we agree with the AJ's determination
that this case involves no such issues. Complainant failed to present
evidence that the agency's actions were motivated by discriminatory
animus toward complainant's race. In so finding, we note that it is
undisputed that the other social workers in complainant's office turned
in patient encounter forms to the appropriate individuals every day, or,
occasionally, every few days, whereas complainant entered the necessary
information himself or had someone assist him on a far less regular basis.
Complainant persisted in this behavior despite being asked to turn the
forms in more often. Moreover, although evidence established that
complainant is the only social worker who is required to sign in or
otherwise let his supervisor know of his whereabouts, it is undisputed
that complainant spends most of his time out in the field, whereas the
other social workers are in the office, visible to the supervisor and in
contact with him, every day. Complainant failed to produce any evidence
to suggest that the agency's explanation for its actions was a pretext
for discrimination. Therefore, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 14, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
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4,992 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a05750.txt | 01a05750.txt | TXT | text/plain | 10,520 | 01A05750 November 17, 2000 . Terri Cisper, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency. | November 17, 2000 | Appeal Number: 01A05750
Case Facts:
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. § 1614.405. Complainant alleges she was discriminated
against on the bases of race (Caucasian), color (white), sex (female),
disability (post traumatic stress disorder, bursitis in the left hip,
pain in feet, back and neck, and ringing in right ear), and reprisal
(prior EEO activity) when she was discharged during her probationary
period on or about February 13, 1998. For the following reasons, the
Commission AFFIRMS the agency's final order.
The record reveals that complainant, formerly a probationary Aviation
Transportation Specialist, at the agency's Dallas, Texas facility, filed
a formal EEO complaint with the agency on April 22, 1998, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ found that the record revealed the following facts: at the
time relevant to the complaint, the agency hired complainant subject
to a one year probationary period. On her application for employment,
complainant reported that she had not been fired from her job in the past
ten year and that she held an Associates Degree. The AJ found however,
that these statements were not true. Complainant's Assistant Manager
decided to discharge complainant for lack of honesty and integrity.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on any bases. Specifically, the AJ found no
evidence of other probationary employees who falsified information in
their application for employment.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that an
investigation into complainant's application revealed that complainant
lied on her application for employment. Specifically, the investigation
established that complainant was fired from a job within the last ten
years, and she did not hold an Associate Degree at the time of her
application.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ
noted that it was unlikely complainant's supervisor would discharge
complainant due to a discriminatory motive, only after recently hiring
her for the position. The AJ also noted that the evidence revealed
complainant would not have been hired for the position unless she had
represented that she held an Associates Degree. Thus, the AJ found,
the information complainant lied about was critical to the selection.
On September 7, 2000, the agency issued a final order that implemented
the AJ's decision. On appeal, complainant restates arguments previously
made during the investigation. She disputes that she was fired by
her prior employer and explains that she was retaliated against by the
prior employer, filed suit, and settled the case. She claims she has
an Associates Degree. In response, the agency restates the position it
took in its FAD, and requests that we affirm its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedures
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when "material facts are not in genuine dispute."
29 C.F.R. § 1614.109(g). Only a dispute over facts that are truly
material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgment). For example, when a complainant is unable to
set forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element of
the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986). EEOC MD-110, at 7-15 November 9, 1999.
The Commission will apply a de novo standard of review when it reviews
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. § 1614.109(g). See EEOC MD-110, at 9-16.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's race, color, sex,
or disability. Even assuming, solely for the purpose of our further
Legal Analysis:
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedures
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when "material facts are not in genuine dispute."
29 C.F.R. § 1614.109(g). Only a dispute over facts that are truly
material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgment). For example, when a complainant is unable to
set forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element of
the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986). EEOC MD-110, at 7-15 November 9, 1999.
The Commission will apply a de novo standard of review when it reviews
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. § 1614.109(g). See EEOC MD-110, at 9-16.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's race, color, sex,
or disability. Even assuming, solely for the purpose of our further
analysis, that complainant does have a disability, she failed to set forth
sufficient facts that would a establish a genuine dispute as to whether
the agency's reasons for its actions were a pretext for discrimination.
Although complainant disputes the results of the investigation into her
application for employment, she failed to establish that agency officials
acted not on the results of the investigation, but instead discriminated
against her based upon a discriminatory motive. 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. | Terri Cisper v. Department of Transportation (FAA)
01A05750
November 17, 2000
.
Terri Cisper,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01A05750
Agency No. DOT-5-98-5095
Hearing No. 310-99-5555X
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. § 1614.405. Complainant alleges she was discriminated
against on the bases of race (Caucasian), color (white), sex (female),
disability (post traumatic stress disorder, bursitis in the left hip,
pain in feet, back and neck, and ringing in right ear), and reprisal
(prior EEO activity) when she was discharged during her probationary
period on or about February 13, 1998. For the following reasons, the
Commission AFFIRMS the agency's final order.
The record reveals that complainant, formerly a probationary Aviation
Transportation Specialist, at the agency's Dallas, Texas facility, filed
a formal EEO complaint with the agency on April 22, 1998, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ found that the record revealed the following facts: at the
time relevant to the complaint, the agency hired complainant subject
to a one year probationary period. On her application for employment,
complainant reported that she had not been fired from her job in the past
ten year and that she held an Associates Degree. The AJ found however,
that these statements were not true. Complainant's Assistant Manager
decided to discharge complainant for lack of honesty and integrity.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on any bases. Specifically, the AJ found no
evidence of other probationary employees who falsified information in
their application for employment.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that an
investigation into complainant's application revealed that complainant
lied on her application for employment. Specifically, the investigation
established that complainant was fired from a job within the last ten
years, and she did not hold an Associate Degree at the time of her
application.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ
noted that it was unlikely complainant's supervisor would discharge
complainant due to a discriminatory motive, only after recently hiring
her for the position. The AJ also noted that the evidence revealed
complainant would not have been hired for the position unless she had
represented that she held an Associates Degree. Thus, the AJ found,
the information complainant lied about was critical to the selection.
On September 7, 2000, the agency issued a final order that implemented
the AJ's decision. On appeal, complainant restates arguments previously
made during the investigation. She disputes that she was fired by
her prior employer and explains that she was retaliated against by the
prior employer, filed suit, and settled the case. She claims she has
an Associates Degree. In response, the agency restates the position it
took in its FAD, and requests that we affirm its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedures
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when "material facts are not in genuine dispute."
29 C.F.R. § 1614.109(g). Only a dispute over facts that are truly
material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgment). For example, when a complainant is unable to
set forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element of
the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986). EEOC MD-110, at 7-15 November 9, 1999.
The Commission will apply a de novo standard of review when it reviews
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. § 1614.109(g). See EEOC MD-110, at 9-16.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's race, color, sex,
or disability. Even assuming, solely for the purpose of our further
analysis, that complainant does have a disability, she failed to set forth
sufficient facts that would a establish a genuine dispute as to whether
the agency's reasons for its actions were a pretext for discrimination.
Although complainant disputes the results of the investigation into her
application for employment, she failed to establish that agency officials
acted not on the results of the investigation, but instead discriminated
against her based upon a discriminatory motive. 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 (M0900)
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 17, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
| [
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"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
"29 U.S.C. § 791",
"29 U.S.C. §§ 791"
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4,993 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a05595.txt | 01a05595.txt | TXT | text/plain | 9,380 | 01 . Katherine Wheatfall, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency. | April 30, 1998 | Appeal Number: 01A05595
Legal Analysis:
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Manual Clerk, at the agency's Los
Angeles Processing & Distribution Center facility, filed a formal EEO
complaint with the agency on July 13, 1998, alleging that the agency
had discriminated against her as referenced above. At the | Katherine Wheatfall v. United States Postal Service
01A05595
10/25/01
.
Katherine Wheatfall,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01A05595
Agency No. 1F-901-0181-98
Hearing No. 340-99-3491X
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
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. § 1614.405. Complainant alleges she
was discriminated against on the bases of race (Black), national origin
(African-American), sex (female), age (DOB: 2/17/43), disability (stress),
and reprisal (prior EEO activity), when on April 30, 1998, she felt
humiliated and embarrassed when the Supervisor of Distribution Operations
criticized and shouted at her in front of other co-workers. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Manual Clerk, at the agency's Los
Angeles Processing & Distribution Center facility, filed a formal EEO
complaint with the agency on July 13, 1998, alleging that the agency
had discriminated against her as referenced above. 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.
Complainant alleged that the Supervisor of Distribution Operations
interrupted her while she was speaking at a safety talk with other
employees, and then insulted her personally. The AJ concluded that
complainant failed to establish a prima facie case of discrimination
on the bases of race, sex or age because she failed to demonstrate that
similarly situated employees not in her protected classes were treated
differently under similar circumstances, and failed to introduce any
evidence of a discriminatory motive. As for her claim of disability
discrimination, the AJ found complainant suffered from stress, but the
evidence did not reveal her stress rose to the level of a disability.
The AJ did find that complainant raised an inference of retaliation
since she established that the Supervisor of Distribution Operations
was aware of prior EEO complaints filed in 1994 and 1996.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
Supervisor of Distribution Operations denied complainant's allegations
and testified that she simply informed complainant that if she wished
to make an announcement that she inform the Supervisor in advance so
that she could allot enough time.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ found
that complainant and the Supervisor's version of the events differed
greatly, and that the testimony of a co-worker was the most credible.
In sum, the AJ found that the Supervisor of Distribution Operations
most likely interrupted complainant but did not make the insulting
comments alleged by complainant. Notably, the AJ found that although
complainant alleged that she was humiliated in public, she presented no
corroborating evidence.
On August 1, 2000, the agency issued a final order that implemented the
AJ's decision. On appeal, complainant restates arguments previously
made at the hearing. She also submits medical documentation requesting
leave from work due to stress.
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. In addition, to the
extent that complainant is alleging she was harassed by the Supervisor of
Distribution Operation due to a prohibited motive, we note that unless
the conduct is severe, a single incident or group of isolated incidents
will not be regarded as discriminatory harassment. Backo v. United
States Postal Service, EEOC Request No. 05960227 (June 10, 1996);
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8,
1996); Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Furthermore, we note that complainant failed to present sufficient
evidence that any of the agency's actions were in retaliation for
complainant's prior EEO activity or were motivated by discriminatory
animus toward any of complainant's protected bases. 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
10/25/01
Date
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4,994 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A05533.txt | 01A05533.txt | TXT | text/plain | 9,014 | 01 . Dale W. Skipper, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency. | January 7, 1997 | Appeal Number: 01A05533
Legal Analysis:
the Commission
AFFIRMS the agency's final decision.
The record reveals that complainant, then a Small Engine Mechanic at
the agency's Tyndal Air Force Base, Florida facility, filed a formal EEO
complaint with the agency on January 7, 1997, alleging that the agency
had discriminated against him as referenced above. At the | Dale W. Skipper v. Department of the Air Force
01A05533
9/4/01
.
Dale W. Skipper,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A05533
Agency No. 7K0J97007
Hearing No. 150-98-5215X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The appeal is accepted pursuant to 29 C.F.R. §
1614.405. Complainant alleges he was discriminated against on the bases
of sex (male), age (over 40), and reprisal (prior EEO activity), when his
employment category was changed from that of a Regular Employee to that
of a Flexible Employee, and his work hours were subsequently reduced
from forty hours per week. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that complainant, then a Small Engine Mechanic at
the agency's Tyndal Air Force Base, Florida facility, filed a formal EEO
complaint with the agency on January 7, 1997, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of reprisal discrimination. Specifically, the AJ found that complainant
failed to demonstrate that he had engaged in prior EEO protected activity.
As for his remaining claims, the AJ assumed that complainant established a
prima facie case of age and sex discrimination. However, the AJ further
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that the Business Based Action
(BBA) that converted complainant's position from a full time regular
position to a flexible position was necessary given the revenue losses
experienced by the agency at the time. Furthermore, the AJ found
complainant's hours were reduced because there was insufficient work
in his shop, and complainant failed to submit weekly reports to justify
the numbers of hours believed to be necessary to accomplish his work.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that subsequent
to the BBA notification, complainant was offered the ability to work in
other work areas in order to accumulate more work hours. However, the
record revealed he failed or refused to do so. Furthermore, complainant
refused to supply weekly reports used to justify work hours. The AJ
found complainant failed to establish that the BBA was accomplished
because of a discriminatory motive towards his sex or age.
On October 26, 1999, the agency issued a final decision that adopted the
AJ's decision. On appeal, complainant restates arguments previously
made before the AJ. In response, the agency restates the position it
took in its FAD, and requests that we affirm its final decision.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there esists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that would establish a genuine dispute existed
as to whether he was subjected to a BBA because of his sex or age, rather
than because of financial reasons. Complainant presented no evidence
that he engaged in prior EEO activity. 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 decision.
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
9/4/01
Date
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4,995 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a05491.txt | 01a05491.txt | TXT | text/plain | 10,967 | 01 . Karen L. Tucker, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency. | May 4, 1995 | Appeal Number: 01A05491
Legal Analysis:
the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's sex or age. Although
complainant alleged on appeal that she was subjected to additional acts
of harassment, the AJ considered complainant's testimony, and found the
actions were not attributable to the agency, nor did the claims constitute
acts of sexual harassment. We discern no basis to disturb the AJ's
decision, which is supported by substantial evidence. 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. | Karen L. Tucker v. Department of the Navy
01A05491
2/6/01
.
Karen L. Tucker,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A05491
Agency No. DON-95-60201-017
Hearing No. 150-98-8394X
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.<1> The appeal is accepted pursuant to 29
C.F.R. § 1614.405. Complainant alleges she was discriminated against on
the bases of sex (female), age (49), and reprisal (prior EEO activity),
when: (1) on May 4, 1995, she was subjected to sexual harassment; and
(2) in June 1995, she was denied placement into the agency's Voluntary
Separation Incentive Program (VSIP). For the following reasons, the
Commission AFFIRMS the agency's final order.
The record reveals that complainant, then a Resource Management Officer
at the agency's Mayport Naval Station, Mayport, Florida facility, filed
a formal EEO complaint with the agency on July 20, 1995, alleging that
the agency had discriminated against her as referenced above. 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 failed to establish a prima facie
case of hostile work environment sexual harassment. The record reveals
that on May 4, 1995, complainant was in attendance at an agency meeting.
During the meeting, one of complainant's co-workers (hereinafter referred
to as Captain), was on the phone with agency legal counsel. Apparently,
there was a lot of noise in the room, and the agency counsel remarked
to the Captain something to the effect that it did not appear that the
group was working very hard. It is not disputed that the Captain then
stated, no, we're working real hard here; Karen put your clothes on.
The record also reveals that the Captain subsequently apologized to
complainant for the comment and also apologized to the entire group in
attendance at the meeting.
The AJ found that although the comment was inappropriate and
unprofessional, it was an isolated occurrence. Additionally, there was
no evidence of any requests for sexual favors, or any evidence that the
statement unreasonably interfered with complainant's work environment.
Although complainant testified to other events that she argued constituted
a hostile work environment, the AJ found the other incidents were not
attributable to the Captain, and preceded the statement alleged herein.
In sum, the AJ found complainant failed to establish that she was
subjected to sexual harassment or a hostile, offensive work environment.
As for complainant's second claim, the AJ assumed that complainant
established a prima facie case of discrimination when she was denied
placement into the agency's VSIP. The AJ further concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ found that complainant was not permitted to retire through the
VSIP because a match<2> for her did not materialize, and secondly, her
department was under investigation for possibly engaging in inappropriate
transfer of funds.
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination or retaliation. In reaching this conclusion,
the AJ found credible evidence that there was no match for complainant.
Although the agency's personnel specialist was unaware of any regulation
that prohibited an individual under investigation from retiring, there
was a legitimate concern that there was a violation of the law concerning
the disbursement of funds. The AJ found insufficient evidence of a
discriminatory animus on the Captain's part, when he denied complainant
placement into the VSIP. On June 30, 2000, the agency issued a final
order that implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
Furthermore, she argues, through her representative, that the AJ failed
to conduct a fair hearing. In response, the agency restates the position
it took in its FAD, and requests that we affirm its final order.
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's sex or age. Although
complainant alleged on appeal that she was subjected to additional acts
of harassment, the AJ considered complainant's testimony, and found the
actions were not attributable to the agency, nor did the claims constitute
acts of sexual harassment. We discern no basis to disturb the AJ's
decision, which is supported by substantial evidence. 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 (M0900)
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
2/6/01
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2When an individual request retirement through the VSIP, a requisition for
another employee with the same series and grade is made to the Priority
Placement Program (PPP). If there is a match with an individual on the
PPP because they have been adversely affected at another command, and
the individual is qualified for the position, then the match is placed
into the position that has been requisitioned, and the incumbent retires
under the VSIP.
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4,996 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A05158_r.txt | 01A05158_r.txt | TXT | text/plain | 9,388 | Wayne F. Blanks v. United States Postal Service 01A05158 December 13, 2001 . Wayne F. Blanks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | December 13, 2001 | Appeal Number: 01A05158
Case Facts:
Complainant filed a timely appeal with this Commission from an agency
decision dated June 22, 2000, dismissing his complaint of unlawful
employment discrimination. Complainant alleged that he was discriminated
against on the bases age and disability when he was subjected to a hostile
work environment that culminated in a Notice of 14-day Suspension which
he received on February 14, 2000.
The agency dismissed the complaint for untimely EEO contact.
Specifically, the agency determined that, although complainant claimed
that he received the Notice of 14-day Suspension on February 14, 2000,
the Notice was issued on January 28, 2000 and complainant knew of the
Notice no later than February 7, 2000, the date of a Step 1 grievance
meeting concerning the same incident. The agency therefore found
that complainant's March 28, 2000 EEO Counselor contact was beyond the
forty-five day limitation period.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five days of the date of the matter
alleged to be discriminatory or, as here, in the case of a personnel
action, within forty-five days of the effective date of the action.
In the present case, although the record shows complainant received a
Notice of a 14-day Suspension, there is no evidence in the record to show
the specific effective date of that suspension. Therefore, the agency
has failed to provide evidence to substantiate its decision concerning
the timeliness of complainant's EEO contact. See Ericson v. Department
of the Army, EEOC Request No. 05920623 (January 14, 1993). Furthermore,
on appeal the agency contends that, [a]lthough the suspension notice
did not have a specific effective date when [complainant] would serve
the suspension, a decision concerning if and when [complainant] would
serve the suspension is determined within the grievance process. The
record indicates, and the agency affirms, that a Step 1 grievance
decision was issued on the matter on February 14, 2000. As such,
the earliest possible effective date for complainant's suspension was
February 14, 2000, or within forty-five days of complainant's March 28,
2000 EEO Counselor contact. Consequently, we find that complainant's
EEO Counselor contact was timely.
Final Decision:
Accordingly, the agency's decision to dismiss complainant's complaint is hereby REVERSED. | Wayne F. Blanks v. United States Postal Service
01A05158
December 13, 2001
.
Wayne F. Blanks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05158
Agency No. 4B-028-0077-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated June 22, 2000, dismissing his complaint of unlawful
employment discrimination. Complainant alleged that he was discriminated
against on the bases age and disability when he was subjected to a hostile
work environment that culminated in a Notice of 14-day Suspension which
he received on February 14, 2000.
The agency dismissed the complaint for untimely EEO contact.
Specifically, the agency determined that, although complainant claimed
that he received the Notice of 14-day Suspension on February 14, 2000,
the Notice was issued on January 28, 2000 and complainant knew of the
Notice no later than February 7, 2000, the date of a Step 1 grievance
meeting concerning the same incident. The agency therefore found
that complainant's March 28, 2000 EEO Counselor contact was beyond the
forty-five day limitation period.
Upon review, the Commission finds that complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five days of the date of the matter
alleged to be discriminatory or, as here, in the case of a personnel
action, within forty-five days of the effective date of the action.
In the present case, although the record shows complainant received a
Notice of a 14-day Suspension, there is no evidence in the record to show
the specific effective date of that suspension. Therefore, the agency
has failed to provide evidence to substantiate its decision concerning
the timeliness of complainant's EEO contact. See Ericson v. Department
of the Army, EEOC Request No. 05920623 (January 14, 1993). Furthermore,
on appeal the agency contends that, [a]lthough the suspension notice
did not have a specific effective date when [complainant] would serve
the suspension, a decision concerning if and when [complainant] would
serve the suspension is determined within the grievance process. The
record indicates, and the agency affirms, that a Step 1 grievance
decision was issued on the matter on February 14, 2000. As such,
the earliest possible effective date for complainant's suspension was
February 14, 2000, or within forty-five days of complainant's March 28,
2000 EEO Counselor contact. Consequently, we find that complainant's
EEO Counselor contact was timely.
Accordingly, the agency's decision to dismiss complainant's complaint
is hereby REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
December 13, 2001
__________________
Date
| [
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"29 C.F.R. § 1614.107(a)",
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"29 C.F.R. § 1614.503(a)",
"29 C.F.R. § 1614.503(g)",
"29 C.F.R. § 1614.409",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
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4,997 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A05112.txt | 01A05112.txt | TXT | text/plain | 9,176 | 02 . Michael K. Lewis, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. | June 14, 2000 | Appeal Number: 01A05112
Case Facts:
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 14, 2000, finding that it was
in compliance with the terms of the August 5, 1997 settlement agreement
into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.
The settlement agreement provided, in pertinent part, that complainant
would be reassigned to the Training Division, Security Department,
Commander, Naval Base, Norfolk, as a General Instructor.
By letter to the agency dated May 10, 2000, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to keep him in the position of General
Instructor. The record reflects that on August 12, 1999, employees in
the Security Department were notified that that department had been
selected for realignment. In May 2000, complainant learned that the
Training Division had been disestablished and he was being sent back
to his position as a Police Officer.
In its June 14, 2000 FAD, the agency concluded that it had complied
with the settlement agreement. The FAD found that as a result of the
restructuring, the affected Police Officers were reassigned to their
Watches. The FAD maintained that annual training requirements were now
being met by the Lead Police Officer. The FAD also maintained that
the settlement agreement did not specify or imply that the intent of
complainant's reassignment to the Training Division was to accommodate
his physical impairment.
On appeal, complainant maintains that the agency should have considered
his physical limitations (chronic tendinitis to his right shoulder)
and retained him as a General Instructor. Complainant contends that as
an accommodation, he should have been allowed to stay in the position
of General Instructor so that he could assist the Lead Police Officer.
Complainant contends that currently he has been placed in a light duty
status with duties not related to a General Instructor or Police Officer
position. Complainant maintains that he is being discriminated against.
On appeal the agency maintains that complainant worked in the Training
Division for almost three years until May 14, 2000, and was transferred
only because the Division was disestablished. The agency contends that
the settlement agreement did not provide that complainant would remain
in the position indefinitely, or that he would never be reassigned.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, the Commission finds that the agency properly
found no settlement breach. The record reveals that complainant was
transferred, as required by the settlement agreement, to the position of
General Instructor. The evidence reflects that complainant served in the
position for three years and the only reason that he was transferred
out of position is because of the restructuring of the Division.
The Commission also notes that a fair reading of complainant's contention
indicates that with respect to his current assignment he is being reprised
against and discriminated against based on his disability. Complainant
is advised that if he wishes to pursue, through the EEO process, this
allegation, he shall initiate contact with an EEO Counselor within 15
days after he receives this decision. The Commission advises the agency
that if complainant seeks EEO counseling regarding his allegations of
reprisal and disability discrimination within the 15 day period, the date
complainant filed the appeal statement, July 19, 2000, shall be deemed
to be the date of initial EEO contact, unless he previously contacted a
counselor regarding this matter, in which case the earlier date should
serve as the EEO counselor contact date. See Qatsha v. Department of
Navy, EEOC Request No. 05970201 (January 16, 1998).
Final Decision:
Accordingly, the agency's decision is hereby AFFIRMED. | Michael K. Lewis v. Department of the Navy
01A05112
12-06-02
.
Michael K. Lewis,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A05112
Agency No. 96-61463-013
Hearing No. 120-97-4110X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 14, 2000, finding that it was
in compliance with the terms of the August 5, 1997 settlement agreement
into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.
The settlement agreement provided, in pertinent part, that complainant
would be reassigned to the Training Division, Security Department,
Commander, Naval Base, Norfolk, as a General Instructor.
By letter to the agency dated May 10, 2000, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to keep him in the position of General
Instructor. The record reflects that on August 12, 1999, employees in
the Security Department were notified that that department had been
selected for realignment. In May 2000, complainant learned that the
Training Division had been disestablished and he was being sent back
to his position as a Police Officer.
In its June 14, 2000 FAD, the agency concluded that it had complied
with the settlement agreement. The FAD found that as a result of the
restructuring, the affected Police Officers were reassigned to their
Watches. The FAD maintained that annual training requirements were now
being met by the Lead Police Officer. The FAD also maintained that
the settlement agreement did not specify or imply that the intent of
complainant's reassignment to the Training Division was to accommodate
his physical impairment.
On appeal, complainant maintains that the agency should have considered
his physical limitations (chronic tendinitis to his right shoulder)
and retained him as a General Instructor. Complainant contends that as
an accommodation, he should have been allowed to stay in the position
of General Instructor so that he could assist the Lead Police Officer.
Complainant contends that currently he has been placed in a light duty
status with duties not related to a General Instructor or Police Officer
position. Complainant maintains that he is being discriminated against.
On appeal the agency maintains that complainant worked in the Training
Division for almost three years until May 14, 2000, and was transferred
only because the Division was disestablished. The agency contends that
the settlement agreement did not provide that complainant would remain
in the position indefinitely, or that he would never be reassigned.
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, the Commission finds that the agency properly
found no settlement breach. The record reveals that complainant was
transferred, as required by the settlement agreement, to the position of
General Instructor. The evidence reflects that complainant served in the
position for three years and the only reason that he was transferred
out of position is because of the restructuring of the Division.
The Commission also notes that a fair reading of complainant's contention
indicates that with respect to his current assignment he is being reprised
against and discriminated against based on his disability. Complainant
is advised that if he wishes to pursue, through the EEO process, this
allegation, he shall initiate contact with an EEO Counselor within 15
days after he receives this decision. The Commission advises the agency
that if complainant seeks EEO counseling regarding his allegations of
reprisal and disability discrimination within the 15 day period, the date
complainant filed the appeal statement, July 19, 2000, shall be deemed
to be the date of initial EEO contact, unless he previously contacted a
counselor regarding this matter, in which case the earlier date should
serve as the EEO counselor contact date. See Qatsha v. Department of
Navy, EEOC Request No. 05970201 (January 16, 1998).
Accordingly, the agency's decision is hereby AFFIRMED.
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
_____12-06-02_____________
Date
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"Qatsha v. Department of Navy, EEOC Request No.... | [
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