0120110446
03-10-2011
Maria T. Darr, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Maria T. Darr,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120110446
Hearing No. 470-2010-00106X
Agency No. 09-63-00227
DECISION
Complainant filed an appeal from an Agency's final action dated September
30, 2010, finding no discrimination with regard to her complaint.
29 C.F.R. � 1614.405(a). For the following reasons, we AFFIRM the
Agency's decision.
BACKGROUND
In her complaint, dated April 17, 2009, Complainant, a Supervisory
Statistician, GS-1530-13/5, with the Agency's Data Capture Branch,
National Processing Center, U.S. Census Bureau, alleged discrimination
in reprisal for prior EEO activity when: (1) she was not selected for
the position of Decennial Operations Manager (DOM), as advertised under
Vacancy Announcement Number NPC 08-086; and (2) she was downgraded and
was denied promotions/selections from July 29, 2004, to March 30, 2008.
On May 27, 2009, the Agency previously dismissed claim (2) due to untimely
EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
The record indicates that at the conclusion of the investigation,
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). On September 20, 2010, the AJ, after a hearing, issued a
decision affirming the Agency's dismissal of claim (2) and finding no
discrimination concerning claim (1), which was implemented by the Agency
in its final action.
ANALYSIS AND FINDINGS
Upon review, we find that the Agency properly dismissed claim (2) which
occurred on or prior to March 30, 2008, due to untimely EEO Counselor
contact. The record indicates that Complainant contacted an EEO counselor
with regard to the matters on November 13, 2008, which was beyond the
45-day time limit set by the regulations. 29 C.F.R. � 1614.105(a)(1).
Despite Complainant's contentions, we find claim (2) did not constitute a
continuing violation since the alleged incidents, i.e., non-promotions,
non-selections, and a downgrade, were sufficiently distinct enough to
trigger the running of the 45-day time limit. See Valentino v. United
States Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark v. Olinkraft,
Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied, 434 U.S. 1069 (1978).
Therefore, we find that the Agency properly dismissed claim (2) due to
untimely EEO Counselor contact. 29 C.F.R. � 1614.107(a)(2).
Turning to claim (1), 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).
An AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that Complainant
had established a prima facie case of discrimination, the Agency
articulated legitimate, nondiscriminatory reasons for the alleged
nonselection. The record indicates that Complainant applied to the
position at issue on September 10, 2008. Report of Investigation (ROI),
Exhibit (Ex.) 23. The Agency stated that an indentified selectee was
selected for the position at issue because she was the best qualified
candidate based on her work experience and her responses to interview
questions. A Selecting Official (SO) for the position stated that
Complainant's responses to interview questions were very short, clipped,
and lacking in the level of detail of the other candidates with respect
to how she would manage the Decennial Operations. ROI, Ex. 16. The SO,
concurred by interview panelists, also indicated that the selectee's
responses were highly engaged in the interview process and elaborated on
aspects of the questions that were important to her and offered specific
ideas that she already had about how she would perform certain tasks
and responsibilities. The interview panelists further indicated that
the selectee also had more programming experience and was interested in
building a strong team which they felt were important for the position
whereas Complainant had slightly more operational experience.
The AJ stated and we agree that Complainant failed to show by a
preponderance of the evidence that the Agency's proffered reasons
were pretextual. Upon review, we find that the AJ's factual findings
of no discriminatory intent are supported by substantial evidence
in the record. Furthermore, we note that Complainant failed to show
that her qualifications for the position were plainly superior to the
selectee's qualifications or that the Agency's action was motivated
by discrimination. See Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995).
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the Agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (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
3/10/11
__________________
Date
2
0120110446
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120110446