Dianna McKinney, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionOct 23, 2002
01A15216 (E.E.O.C. Oct. 23, 2002)

01A15216

10-23-2002

Dianna McKinney, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Dianna McKinney v. Department of Defense

01A15216

October 23, 2002

.

Dianna McKinney,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Commissary Agency),

Agency.

Appeal No. 01A15216

Agency No. 98DCMW39002

Hearing No. 360-AO-8230X

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 Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and

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 Sales Store Checker at the agency's

Kingsville Commissary, Naval Air Station, Kingsville, Texas (�facility�),

filed a formal EEO complaint on January 13, 1999, alleging that the

agency had discriminated against her on the bases of national origin

(Hispanic), sex (female), disability (eye condition), and reprisal for

prior EEO activity when, from August 29, 1998, through November 5, 1998,

she was allegedly subjected to a continuous pattern of harassment creating

a hostile work environment. In support of her complaint, complainant

cited 27 separate incidents of alleged harassment by facility management.

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.

The AJ concluded that while complainant established a prima facie

case of retaliation, she failed to establish a prima facie case of

discrimination on the bases of race, national origin or sex. Addressing

complainant's allegation of disability discrimination, the AJ found that

she failed to demonstrate that her eye condition rose to the level of a

disability as defined by the Rehabilitation Act. Specifically, the AJ

found that complainant failed to offer evidence that her eye condition

substantially limited her in the performance of a major life activity,

and thus she failed to establish coverage under the Rehabilitation Act.

Regarding complainant's allegation of retaliation, the AJ found that the

agency articulated legitimate, nondiscriminatory reasons for its actions.

In so finding, the AJ stated that complainant's interpretation of

documents and events is not as credible as the agency's interpretation

of the same documents and events. As an example, the AJ found that

while complainant alleged retaliation when the agency investigated

her workers compensation claim, the facility's workers compensation

investigator found complainant's claim suspicious and investigated it.

After consideration of the evidence, the AJ concluded that complainant

presented insufficient evidence of pretext. The agency's final order

implemented the AJ's decision. On appeal, complainant restates arguments

previously made at the hearing.

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 motivated by discriminatory animus toward complainant's

race, sex or national origin. In so finding, we note that the record

contains no evidence that there were any similarly situated employees

not in complainant's protected groups who were treated differently under

similar circumstances. In addition, the Commission concurs with the AJ's

finding that complainant failed to establish that it was more likely

than not that the agency's articulated reasons for the actions taken

against complainant were more likely than not a pretext for retaliation.

Regarding complainant's allegation of disability discrimination, we

find that even assuming, arguendo, that complainant was an individual

with a disability, complainant has not proffered any documentation that

the agency discriminated against her based on her disability or failed

to accommodate her eye condition. In so finding, we defer to the AJ's

finding that the agency's interpretation of events is more credible than

complainant's interpretation of the same events. See AJ's Decision, at 5.

In addition, while the AJ did not specifically address whether the

agency's actions against complainant constituted hostile work environment

harassment, we find that none of complainant's allegations constituted

harassment. In so finding, we again defer to the AJ's finding that

the agency's interpretation of events alleged by complainant is more

credible than complainant's interpretation of the same events. Id.

We thus discern no basis to disturb the AJ's decision.

Therefore, after a careful review of the record 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

October 23, 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.