01974568
11-25-1998
Janice T. Friedricks, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Janice T. Friedricks v. Department of Defense
01974568
November 25, 1998
Janice T. Friedricks, )
Appellant, )
) Appeal No. 01974568
v. ) Agency No. HX-95-001
) Hearing No. 100-96-7351X
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of sex (female), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The issues on appeal, and as set forth by the agency FAD, concern whether
or not appellant was discriminated against when:
(1) her supervisor failed to assist her in submitting the appropriate
forms for her to receive her payroll or travel checks in a timely manner,
with the most recent incident occurring for the pay period ending
September 10, 1994; and
(2) she was subject to continuing harassment based on sex when:
On September 15, 1994, an employee waited until everyone had left the
work site and drove his vehicle at a high rate of speed along side of
appellant;
In August of 1994, an employee drove his forklift at a high rate of
speed and dropped a load of zinc weighing over 2000 pounds next to
where appellant was standing;
In April of 1994, an employee shot a rifle outside the door of the
warehouse while appellant was working inside;
In February of 1994, an employee rammed the back of appellant's forklift
while she was sitting in her parked forklift;
In February of 1994, while appellant was walking to the warehouse,
an employee jumped out from behind a vehicle and shoved her across the
opening of the warehouse doorway; and
In October of 1992, appellant's supervisor allegedly stated that because
she is a woman, it was easier to task her to clean the bathroom instead
of the male employees.
The record reveals that during the relevant time, appellant was employed
as a WG-6 Material Handler, Forklift Operator at the agency's Defense
Logistics Agency Depot, Point Pleasant, West Virginia. Believing she was
a victim of harassment and discrimination based on the above-referenced
events, appellant sought EEO counseling and, subsequently, filed a formal
complaint on January 3, 1995. At the conclusion of the investigation,
appellant received a copy of the investigative report. Appellant also
requested a hearing before an EEOC Administrative Judge (AJ), who,
following a hearing, issued an RD finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie
case of sex discrimination respecting issue (1) because she failed to
demonstrate that similarly situated male employees were treated more
favorably when male employees had difficulties with their payroll or
travel checks. The AJ also concluded that appellant failed to establish
a prima facie case of harassment based on sex concerning any of the
six alleged above-referenced incidents. The AJ further noted that the
agency articulated legitimate, nondiscriminatory reasons for its actions
respecting each of the six allegations of harassment based on sex.<1>
The agency's FAD adopted the AJ's RD. Appellant presents no arguments
on appeal and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that appellant
failed to establish a prima facie case of either sex discrimination
or harassment based on sex. We discern no basis to disturb the AJ's
findings of no discrimination which were based on a detailed assessment
of the credibility of the witnesses. See Gathers v. United States Postal
Service, EEOC Request No. 05890894 (November 9, 1989); Wrenn v. Gould, 808
F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer City, 470 U.S. 564,
575 (1985). Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Nov 25, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We note that the specific factual findings and legal conclusions are
adequately set forth in the AJ's RD, and need not be repeated verbatim
herein.