01a30446
02-12-2004
Lyn Maren Jensen, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (DCMA), Agency.
Lyn Maren Jensen v. Department of Defense (DCMA)
01A30446
02-12-04
.
Lyn Maren Jensen,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense (DCMA),
Agency.
Appeal No. 01A30446
Agency No. XQ 97-006 (XQ 96-019)
Hearing No. 340-97-4040x
DECISION
On October 16, 2002, Lyn Maren Jensen (hereinafter referred to as
complainant) filed an appeal from the October 2, 2002, final decision
of the Department of Defense (DCMA) (hereinafter referred to as the
agency) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the basis of reprisal for prior EEO activity with regard to events
leading up to her removal, effective August 17, 1996.
On June 11, 1996, complainant filed her formal complaint; it was later
amended to include the agency's removal actions. The agency accepted
Issues 1 and 2 and forwarded them for investigation; it dismissed
Issues 3-12. Following the investigation on the accepted claims, the
agency issued a final decision on September 30, 1997, finding that it
did not discriminate against complainant. Complainant filed an appeal,
and the Commission affirmed the agency's decision of no discrimination.
See EEOC Appeal No. 01980554 (September 20, 1999).
With regard to the dismissed issues, complainant filed an appeal from
the agency's dismissal, and the Commission remanded them for continued
processing. See EEOC Appeal No. 01966121 (July 10, 1997). On remand,
the agency assigned a new agency number (XQ 97-006) and conducted
an investigation. Complainant requested a hearing before an EEOC
Administrative Judge (AJ), and, on May 15, 2002, the AJ granted partial
summary judgment on all issues except Issue 3. After clarification of
certain facts regarding Issue 3, the AJ dismissed this claim on June 12,
2002, for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant has filed the instant appeal from the AJ's decisions of May
15 and June 12, 2002 (decision), concerning Issues 3-12.
At the time of the events herein, complainant worked as an Office
Automation Assistant, GS-6, at the agency's McDonnell Douglas, Long
Beach (CA), facility. Complainant filed an earlier complainant in
March 1995 (Agency No. XQ 95-008), and a hearing in that matter was
held on Thursday, April 25, 1996. Three co-workers, including her
immediate supervisor, testified against her and rebutted her claims of
discrimination and hostile work environment.<1> On the following day,
Friday, April 27, 1996, in the agency's secured parking lot, the cars
of these three employees were vandalized; in addition, over the weekend,
they reported receiving 'hang-up' and harassing telephone calls at home,
and one employee's car was further vandalized in her driveway.
Effective Monday, April 29, 1996, complainant was placed on
administrative leave pending an investigation and barred from the
facility; she was directed to refrain from contact with her co-workers;
and she was ordered to provide medical information within ten days
and contact the Employee Assistance Program (EAP) within three days.
The agency stated that it required this information to understand
complainant's medical condition and respond appropriately to ensure a
safe working environment for all employees.<2> Complainant failed to
act in a timely manner and was placed on absent without leave (AWOL)
status.<3> On June 10, 1996, the agency issued a Notice of Proposed
Removal, and she was removed effective August 17, 1996.
According to the AJ, complainant identified the following issues:<4>
1. an agency employee advised another employee to testify falsely and
negatively at complainant's hearing held on April 25, 1996;
2. on April 30, 1996, the guard at her duty station seized complainant's
badge and pass, and interfered with her meeting her union representative;
3. management informed employees that they will end up like complainant
if they go to the Union, cooperate with the Commission, or testify
negatively about a certain agency official;
4. on April 29, 1996, management placed complainant on administrative
leave and directed her to contact EAP;
5. on April 30 and June 5, 1996, complainant received a letter from
management directing her to avoid all contact with the three co-workers,
on- or off-duty;
6. on May 1, 1996, complainant received letters requesting medical
docu- mentation within ten days and directing her to contact EAP within
three days;
7. management refused to allow complainant to meet with an EEO Counselor
on- site and requested that complainant meet the EEO Counselor at
a restaurant;
8. on May 16, 1996, management placed complainant on AWOL status;
9. on June 5, 1996, management refused to allow her to return to duty;
10. on June 10, 1996, complainant received a Notice of Proposed Removal;
and,
11. effective August 17, 1006, she was removed.<5>
The AJ addressed each issue separately, finding no discrimination
or dismissing the claim. She held that even assuming complainant
had established a prima facie case of reprisal, she was unable to
demonstrate pretext in response to the agency's articulated reason, that
is, she found that the agency's actions were justified by its legitimate
and non-discriminatory concern for the safety of its employees and of
the workplace. She noted that the agency's actions were taken after
an investigation showed overwhelming circumstantial evidence linking
complainant to the vandalism and harassment of her three co-workers.
Disparate treatment claims are examined under the tripartite analysis
whereby a complainant must first establish a prima facie case 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. McDonnell
Douglas, 411 U.S. 792 (1973); 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. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference of
retaliation. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996) (citing McDonnell Douglas Corp. v. Green,
supra). Specifically, in a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, supra, Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veterans
Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may
establish a prima facie case of reprisal by showing that: (1) s/he engaged
in a protected activity; (2) the agency was aware of his/her protected
activity; (3) subsequently, s/he was subjected to adverse treatment
by the agency; and (4) a nexus exists between the protected activity
and the adverse action. Whitmire v. Department of the Air Force, EEOC
Appeal No. 01A00340 (September 25, 2000); Fabish v. USPS, EEOC Appeal
No. 01981273 (June 1, 2001). In the matter before us, even assuming
complainant established a prima facie case of reprisal on all claims,
she did not demonstrate that the agency's actions were taken based upon
a discriminatory pretext and not because of her own intervening actions.
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 Administrative Judge's issuance of a decision without a
hearing was appropriate, and the preponderance of the evidence of record
does not establish that discrimination occurred.
CONCLUSION
Accordingly, the agency's decision was proper and 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
____02-12-04______________
Date
1On July 16, 1996, the AJ in that matter issued a decision, finding no
discrimination, which the agency adopted. On appeal, the Commission
affirmed the agency's determination. EEOC Appeal No. 01970621 (December
2, 1998).
2In an earlier complaint, complainant stated that she had Chronic Fatigue
Syndrome (CFS).
3On June 5, 1996, complainant submitted a one-line note from her doctor
that she was under his care and free to return to work, which agency
management deemed non-responsive.
4The AJ's numbering of the issues varied slightly from the agency's list,
and we follow the AJ's description of the issues. Note that the AJ's
decision included a determination on Issues 1 and 2; however, those were
addressed previously. See EEOC Appeal No. 01980554 (September 20, 1999).
We identify them for reference only.
5Complainant appealed her termination to the Merit Systems Protection
Board (MSPB) but did not raise an affirmative defense based on
discrimination. In an Initial Decision, the MSPB AJ found that the
agency supported its charges that complainant engaged in threatening
acts against three employees and disregarded two management directives,
thus upholding the agency's removal action effective August 17, 1996.
See MSPB No. SF-0752960810-I-1 (October 7, 1997).