01983726
05-09-2001
Michelle A. Payton, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Michelle A. Payton v. Department of Defense (Army & Air Force Exchange
Service)
01983726
May 9, 2001
.
Michelle A. Payton,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01983726
Agency No. 96-163
Hearing No. 310-97-5330X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the basis of sex (female) when:
(1) she was allegedly subjected to verbally abusive, derogatory comments
regarding the female sex and denied training during
the period April 3, 1996 through June 5, 1996; and
(2) she was downgraded from the position of Mobile Video Surveillance
Specialist (MVS),
UA-8T, to Training Instructor (TI), U-6, effective August
24, 1996.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a former MVS assigned to the
agency's Headquarters facility, filed a formal EEO complaint with the
agency on September 10, 1996, alleging that the agency had discriminated
against her as referenced above. 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 complainant failed to establish a prima facie case
of sex discrimination. Specifically, the AJ found that complainant
failed to demonstrate that similarly situated employees not in her
protected class were treated differently under similar circumstances when
undergoing training by the same instructor, since complainant was the
only one in the subject training program during the relevant time period.
Complainant contended that the instructor's harsh treatment of her was
evidence leading to the conclusion that he had a discriminatory animus
towards women. Yet the AJ found that such treatment did not lead to
the above conclusion, inasmuch as other, credible evidence demonstrated
that the instructor was a difficult supervisor to work for regardless
of the subordinate's sex. In any case, the AJ concluded that the
agency had articulated legitimate, nondiscriminatory reasons for its
actions, namely, that complainant was slow in performing her tasks,
consistently forgot how to perform installations, was uncomfortable
tapping into power, and had not become proficient in suspect interview
skills, despite complainant's training period being extended twice.
The agency's final decision adopted the AJ's decision.
On appeal, complainant contends that her instructor did not want a female
partner and did everything possible to ensure that she did not get trained
or pass certification. She notes that the instructor's two prior male
partners also did not meet the job requirement of tapping into live power
and one had not performed the requirement of solo operations, but that
the instructor still provided training and certification for both of them.
Complainant also questioned the neutrality of the complaint investigators.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final decision.
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).
After a careful review of the record, the Commission finds 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 sex. In this
regard, the record evidence shows that the instructor was a difficult
man to work for regardless of the subordinate's sex. Hence, we discern
no basis to disturb the AJ's decision. Therefore, after a careful review
of the record, including complainant's other contentions on appeal, the
agency's response, and arguments and evidence not specifically addressed
in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 9, 2001
Date