01A02084
02-22-2002
Desiree Wilkinson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Desiree Wilkinson v. Defense Financing & Accounting Service
01A02084
February 22, 2002
.
Desiree Wilkinson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A02084
Agency No. DFAS-CL-NORF-97-004
Hearing Nos. 120-98-9652X; 120-98-9653X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a Financial Systems Analyst, at
the agency's Norfolk, Virginia, facility, filed formal EEO complaints
on January 17, 1997, and October 10, 1997, alleging that the agency had
discriminated against her on the bases of disability (severe depression
and perceived mental impairment) and reprisal for prior EEO activity
under the Rehabilitation Act and Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., when:
a supervisor (S1) advised managers and supervisors at a meeting on
September 30, 1996, not to associate with complainant;
complainant's desk was moved seven (7) times;
complainant was denied a reasonable accommodation when she was not
permitted to extend her Flex-time hours;
complainant received a lower performance evaluation for the rating
period of November 11, 1996, to March 16, 1997; and
complainant was kept in an unmatched position description.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
With respect to incident one, the AJ concluded that complainant failed
to demonstrate, by a preponderance of the evidence, that S1 did as
complainant alleges. Although there is evidence that S1 discussed
complainant with one manager (S2), a preponderance of the evidence
does not show that S1 had this conversation with S2 during a meeting.
Nor does the evidence show that, as part of the conversation, S1 told
S2 not to associate with complainant.
The AJ concluded that complainant failed to establish a prima facie case
of disparate treatment discrimination on either of her claimed bases
regarding incidents two and five. The AJ found that complainant failed to
demonstrate that similarly situated employees not in her protected classes
were treated differently under similar circumstances. Specifically the
AJ noted that, because of several reorganizations within the agency, many
employees were moved several times and worked in unmatched positions
descriptions. The AJ went on to point out that at the time of the
hearing there were 23 people that still remained in unmatched positions.
As to incident three, the AJ concluded that the agency granted
complainant's reasonable accommodation request. The AJ found that the
agency was proper in asking complainant was medical documentation to
substantiate her need to work later than the flex-time band permitted.
Once the agency received such documentation, complainant was permitted
to work later than 6:00 p.m., as requested.
Finally, respecting incident four, the AJ concluded that complainant
established a prima facie case of disparate treatment discrimination.
Nonetheless, the AJ concluded that the agency articulated a legitimate,
nondiscriminatory reason for its action, namely that complainant's
performance during the rating period was not exceptional, as in previous
rating periods. The AJ found, and we concur, that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination/retaliation.
The agency's final order implemented the AJ's decision. On appeal,
complainant restates arguments previously made at the hearing. The agency
requests that we affirm its final order.
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's disability.
We further note that, to the extent complainant is arguing that the
agency delayed in granting her request to work late as a reasonable
accommodation, we find that the agency acted promptly and appropriately.
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, Number 915.002
(March 1, 1999), Question 5-6. We discern no basis to disturb
the AJ's decision. 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 final order.
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
February 22, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.