0120082398
08-01-2008
Betty J. Hooker, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Department of Defense Education Activity), Agency.
Betty J. Hooker,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Department of Defense Education Activity),
Agency.
Appeal No. 0120082398
Agency No. EU-FY06-067
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 10, 2008 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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.
At the time of the events at issue, complainant was employed by the
agency as an Office Automation Assistant, GS-5, from December 11, 2005,
to her resignation on September 25, 2006. Complainant alleged that the
agency discriminated against her on the bases of sex (female), color
(Black) and in reprisal for prior protected EEO activity when:
(1) on June 28, 2006, she received a Memorandum of Counseling, dated June
26, 2006, subject: Refusal to discuss work/Insubordination, and on July
5, 2006, she received another Memorandum of Counseling, dated June 30,
2006, subject: Refusal to Follow Instructions/Insubordination; and
(2) on September 20, 2006, her second-line supervisor served her a Letter
of Reprimand dated September 18, 2006.
The record indicates that complainant initially told her first-level
supervisor (S1) that she intended to file an EEO complaint in March
2006, and sent S1 an e-mail on June 23, 2006 again indicating she
was intending to file an EEO complaint over various workplace issues.
Shortly thereafter, complainant received the two memoranda of counseling
from her second-level supervisor (S2), and several months later the
letter of reprimand. Complainant asserts these actions were taken as
a result of sex and race discrimination, as well as in retaliation for
her earlier complaint.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ) or accept a
final agency decision. Complainant requested a final agency decision.
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). In its final decision,
the agency found no discrimination or retaliation occurred.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Management witnesses stated that complainant and a coworker became
involved in a disagreement which management became aware of because
they both shared emails relating to the dispute with S1. In an effort
to resolve the issue, management stated that S2 held a meeting in her
office to discuss the matter with complainant. S1 was also in attendance.
During the course of this meeting, S1 and S2 allege complainant engaged in
insubordinate and inappropriate behavior towards S2 which resulted in the
June 26 letter of counseling. That behavior is more fully detailed in the
letter and essentially indicates complainant repeatedly refused to discuss
matters with S2, including the status of a work task. Several days
later, on June 30, S2 issued an additional letter of counseling, alleging
further refusal to follow instructions/insubordination and instructing
complainant to "respond to emails in an appropriate fashion, to answer
questions relative to her job expeditiously, and to ask questions of her
supervisor when she did not understand." The details of the events that
precipitated this memo also appear on its face. Finally, in September,
S2 issued complainant a letter of reprimand concerning several incidents
of failure to properly request leave and unauthorized departure from work.
Both S1 and S2 denied anything but complainant's misconduct resulted
in these actions. The Commission concludes that agency management has
articulated legitimate, nondiscriminatory reasons for its actions, which
complainant failed to prove were pretext for unlawful discrimination or
retaliation.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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 1, 2008______
Date
1 On appeal, complainant does not challenge the November 30, 2006 partial
dismissal issued by the agency regarding her other claims (on June 7,
2006, the Education Division management without notification, transferred
all phones in the division to complainant to answer while other staff
went away to an offsite meeting and treating her less favorably than
the other administrative staff; from December 2005 to March 30, 2006,
she was subjected to a hostile work environment; and was subjected to
adverse action after informing management on June 23, 2006, that she
was going to file an EEO complaint). Therefore, we have not addressed
these issues in our decision.
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0120082398
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120082398