0520110581
01-12-2012
Audrey Lee, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Headquarters), Agency.
Audrey Lee,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.
Request No. 0520110581
Appeal No. 0120082563
Hearing No. 570-2007-00496X
Agency No. HS07HQ000122
DENIAL
Complainant timely requested reconsideration of the decision in Audrey
Lee v. Department of Homeland Security, EEOC Appeal No. 0120082563
(July 5, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates that: (1) the appellate decision
involved a clearly erroneous interpretation of material fact or law; or
(2) the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. § 1614.405(b).
In our previous decision, we affirmed the Administrative Judge's
(AJ) issuance of a decision without a hearing in favor of the
Agency. Specifically, we noted that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. We noted that the Letter of
Reprimand issued to Complainant was warranted because she was loud and
argumentative with her supervisors, and the documentation that Complainant
provided was unresponsive. We also noted that Complainant received an
“Unacceptable” Performance Evaluation due to communication issues,
and difficulty accepting supervisory questions and comments about her
work. We noted that Complainant failed to show by a preponderance
of the evidence that the Agency’s explanations were pretext for
discrimination. With respect to Complainant’s claim of harassment,
we noted that the discriminatory incidents alleged were not sufficiently
serve or pervasive. We noted that Complainant’s claim was an isolated
incident that failed to rise to the level of objectively unreasonable
behavior that would trigger a violation of Title VII.
In her request for reconsideration, Complainant, in pertinent part,
contends that we misconstrued material facts and did not address her
retaliation claim or the credibility of her supervisors. Complainant
contends that her first-level supervisor (S1) engaged in severe
retaliatory harassment. Complainant contends that S1’s racial
slurs coupled with his lies and subsequent actions constituted
retaliatory harassment. Complainant contends that S1 used the words
“yellow” and “oriental,” which are per se discriminatory towards
Asian-Americans. Complainant contends her supervisors’ explanations
are not credible and false. Complainant contends that S1 issued her a
subjective “Unacceptable” Performance Evaluation in retaliation for
her EEO activity. Complainant contends that the Report of Investigation
was incomplete, and that there are material facts in dispute such that
a hearing is warranted. Complainant contends that her motion to amend
and motion to compel discovery were ignored by the AJ.
Notwithstanding Complainant’s contentions, as noted in our previous
decision, mere allegations, speculations, and conclusory statements
are insufficient to create a genuine issue of material fact. See Baker
v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), req. for
recon. den’d, EEOC Request No. 05A10914 (Oct 1, 2001). Further, the
Commission has repeatedly found that unless the conduct is very severe,
a single incident or group of isolated incidents will not be regarded as
creating a hostile work environment. See Phillips v. Dep't of Veterans
Affairs, EEOC Request No. 05960030 (July 12, 1996). We also note an AJ
has broad discretion in the conduct of a hearing, including matters such
as issuing discovery orders, scheduling, and witness selection. See
29 C.F.R. § 1614.109(e). We remind Complainant that a request for
reconsideration is not a second form of appeal. See Lopez v. Dep't of
Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007); EEO Management
Directive for Part 1614 (EEO MD-110), Chap. 9, §VII.A. (Nov. 9, 1999).
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120082563 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. If you file a civil action, you must name as the defendant
in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization, and
not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 12, 2012
Date
Date
2
0520110581
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110581