0120062489
12-15-2006
Carolina M. Laboy-Johnson, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Carolina M. Laboy-Johnson,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200624891
Agency No. 8L1M0503ITF06
DECISION
Complainant appeals to the Commission from the agency's decision dated
February 3, 2006, finding no discrimination.2 In her complaint,
complainant, a Secretary (Office Automation), GS-0318-05, alleged
discrimination based on national origin (Hispanic) and disability (Post
Traumatic Stress Disorder) when:
1. During the meeting on April 7, 2005, her immediate supervisor informed
her that the Secretary (Office Automation), GS-0318-05, position would
be reclassified at the higher grade of GS-06, and remarked that he had
reservations about her ability to satisfactorily perform at a higher
grade level;
2. During same meeting on April 7, 2005, the supervisor asked her if she
had applied for disability retirement because he did not expect her to
remain in her current position during the next year;
3. On April 11, 2005, the supervisor required her to submit a leave
request for her appointment at the base dispensary; and
4. On April 13, 2005, the supervisor required her to submit a leave
request for her appointments at the EEO Office and the Entitlements and
Benefit Office.
The agency issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which complainant failed
to rebut. Complainant appealed from this decision.
After a review of the record, the Commission finds, assuming arguendo
that complainant established a prima facie case of discrimination,
that the agency articulated legitimate, nondiscriminatory reasons for
the alleged actions. With regard to claim (1), complainant's supervisor
acknowledged making some of the related comments. The agency noted that
complainant was performing such that she was only providing a very limited
level of clerical support. The agency also noted that complainant had
been repeatedly counseled and disciplined for work related deficiencies.
With regard to claim (2), complainant's supervisor stated that he might
have told complainant to apply for disability retirement. However, he
pointed out that complainant had previously requested that he complete
some forms to support her application for disability retirement and
complainant admitted doing so.
With regard to claims (3) and (4), the supervisor stated that he asked
complainant to provide leave request forms for her absences on April 11
and 13, 2005, because she had a history of absenteeism and failure to
properly account for her time away from her job. The supervisor also
indicated that complainant frequently used the base dispensary for other
types of medical appointments that were not work related. He further
stated that he did not know that complainant's appointment at the base
dispensary on April 11, 2005, was for an on-the-job injury because when
she made her request to go to the base dispensary, she did not specify
why she needed the appointment. He also indicated that he was not aware
of complainant's appointment with the EEO Counselor on April 13, 2005.
Nevertheless, stated the agency, the supervisor approved complainant's
request for leave on those days. The agency also stated that during
the relevant time period at issue, the supervisor was acting as a
supervisor and was trying to fulfill his supervisory responsibilities,
i.e., assignment of work and approval of leave. The agency determined,
and we agree, that the alleged incidents were not severe or pervasive
enough to create a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the Commission finds that
complainant failed to show, by a preponderance of the evidence, that
she was discriminated against. The Commission does not address in
this decision whether complainant is a qualified individual with a
disability. Furthermore, we note that complainant has not claimed that
she was denied a reasonable accommodation. Regarding claim 4, we note
that complainant's statements do not clearly indicate that she actually
requested official time to go to the EEO Office. Complainant's supervisor
stated that if she was asked specifically for EEO time, she would have
allowed complainant to go to the EEO Office without being charged leave.
We find that complainant has not shown that she was denied official time
for EEO related matters.
Accordingly, the agency's decision finding no discrimination is 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
December 15, 2006
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 In this case, complainant elected to participate in the Air Force
Pilot Program for the "Compressed, Orderly, Rapid, and Equitable (CORE)"
process wherein the investigation and hearing processes were replaced
with a single investigative and quasi-adjudicative process labeled a CORE
Fact-Finding Conference (CFFC) conducted by the Department of Defense
Civilian Personnel Management Service, Office of Complaint Investigations
(OCI). After the conclusion of the CFFC, the OCI made a recommended
decision to the Air Force Civilian Appellate Review Office, which then
issued the agency's decision at issue.
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0120062489
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036