01a51899
12-16-2005
Patricia A. Smith-Johnson Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Patricia A. Smith-Johnson v. Department of the Army
01A51899
December 16, 2005
.
Patricia A. Smith-Johnson
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A51899
Agency No. ARSTEW020CT003
Hearing No. 110-A4-0208X
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge's (AJ)
decision finding no discrimination is supported by substantial evidence
in the record.
Background
The record reveals that complainant, a Dental Assistant at the agency's
Dental Activity, Fort Stewart, Georgia facility, filed a formal EEO
complaint on December 30, 2002, and January 3, 2003 then amended June
26, 2003. She alleged that the agency discriminated against her on
the basis of reprisal for prior EEO activity when she was subjected to
harassment and a hostile work environment. Specifically, she alleged
that she was unfairly disciplined, given letters of counseling and
reprimands and denied leave.
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 even assuming that complainant established a prima
facie case of discrimination, she failed to demonstrate the agency's
reasons for issuing discipline were a pretext for discrimination.
In particular, two letters of counseling were issued in early 2001 before
complainant had contacted an EEO counselor in April 2001. In addition,
the AJ found that there was no connection shown between one of the
managers involved in issuing a letter of reprimand and complainant �s
protected activity.
The AJ concluded that for the most part, complainant did not contest the
facts underlying the letters of counseling. For instance, she admitted
that she had an altercation with a supervisor which led to a memorandum
regarding her insubordination. Additionally, complainant did not deny
that she made statements about a supervisor's connection to an employee's
suicide attempt which led to a letter of reprimand. The AJ found that
the incidents in question did not create a hostile work environment
because there were large gaps in time between the issuance of a letter
of reprimand and the next disciplinary action. Moreover, the agency's
decision to reduce a proposed suspension to a letter of reprimand was
not consistent with a motive to retaliate against complainant. In sum,
the AJ concluded that the agency's actions more likely indicated that her
supervisors had stern personalities than that they sought to retaliate
against complainant. The agency's final order implemented the AJ's
decision.
On appeal, complainant contends that the AJ erred in allowing the
hearing to proceed because she had asked for a continuance to allow her
enough time to prepare. Complainant also disputes the AJ's finding
of no discrimination because the timing of the disciplinary actions
were all suspicious and related to her filing of a complaint in 2001.
She argues that because the race of the individuals involved was not
included, the record was incomplete and could be adequately evaluated.
The agency argues that the AJ's conclusions were correct and should be
upheld on appeal.
ANALYSIS AND FINDINGS
Our review of the AJ's decision after a hearing is as follows.
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. 29 C.F.R. �
1614.405(a) 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.<1>
Based on a review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence. Specifically,
the record reflects that complainant conceded that certain incidents
occurred just as the agency represented such as the altercation she had
with a supervisor and the accusations she made that a supervisor's acions
caused an employee to attempt suicide. Complainant also did not challenge
that she may have violated the agency's rules prohibiting employees'
selling of items in the workplace. Rather, complainant contests that
the agency's discipline was fair and that others were treated the same.
The investigation revealed that other employees also received letters
of reprimand and counseling memoranda for various infractions of the
agency's rules during the same period of time. Furthermore, complainant
admitted she was unable to demonstrate that some of the managers involved
in issuing her discipline, in particular the re-issuance of a suspension
in 2003, were aware of her protected EEO activity.
The Commission also concludes that the record adequately supports that
the agency's actions did not create a hostile work environment based on
retaliation.<2> Rather, complainant admitted that she had arguments
with at least two supervisors which more likely reflected her poor
interpersonal relationships with them, not discrimination. Therefore,
for these reasons, we conclude the AJ's decision is supported by the
record and we affirm the finding of no discrimination.
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
December 16, 2005
__________________
Date
1Complainant contends that the AJ's denial of
her motion to continue the hearing was error because she had to proceed
without counsel and she was unprepared. The AJ ruled that the motion
was untimely filed because it was submitted one day prior to trial.
We see no abuse of discretion since some of the evidence the AJ relied
on was brought out in a fact finding conference where complainant was
accompanied by a representative.
2Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). To establish a prima facie case of harassment, complainant
must show that: (1) she is a member of a statutorily protected class
and/or was engaged in prior EEO activity; (2) she was subjected to
unwelcome verbal or physical conduct related to her membership in that
class and/or her prior EEO activity; (3) the harassment complained of
was based on her membership in that class and/or her prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (Sept. 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).