01A21831_r
08-13-2002
Cynthia U. Anderson, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Cynthia U. Anderson v. Department of the Air Force
01A21831
August 13, 2002
.
Cynthia U. Anderson,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A21831
Agency No. ED1M96036
Hearing No. 150-A1-8201X
DECISION
Complainant 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 record reveals that complainant, a Recreation Assistant at the
agency's Hurlburt Field Youth Center facility, filed a formal EEO
complaint on January 17, 1997, alleging that the agency had discriminated
against her on the basis of race when:
Complainant received an overall rating of "fully successful" on her
performance appraisal for the rating period July 1, 1996 - June 30, 1996.
Complainant was detailed to a position in the Open Recreation Program
at the Child Care Center on September 30, 1996.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). By order issued October 19, 2001, the AJ
dismissed complainant's complaint from the hearing process when neither
complainant nor her representative appeared for a pre-hearing telephone
conference scheduled for October 16, 2001. The AJ's order remanded
the complaint to the agency for a decision. The Commission finds that
the AJ's order was appropriate.
In a final decision dated April 8, 2002, the agency concluded that
complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination.
The Commission finds that complainant failed to show by a preponderance
of evidence that the agency's articulated reasons for its actions were
a pretext or intended to mask discriminatory animus. In reaching this
conclusion, we note that complainant failed to rebut the testimony of
her former supervisor regarding the critical and non-critical elements
of her performance appraisal and overall rating. Similarly, complainant
has submitted no evidence to show the agency's decision to transfer her
position to one in the Child Care Center was motivated by discrimination
and not a legitimate business decision to reassign complainant to a
position consistent with her educational qualifications and experience.
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
decision finding no discrimination.
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
August 13, 2002
__________________
Date