01981312
11-24-1998
Rebecca M. Campbell, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Rebecca M. Campbell v. Department of the Army
01981312
November 24, 1998
Rebecca M. Campbell, )
Appellant, )
) Appeal No. 01981312
v. ) Agency No. BKEX9607G0230
) Hearing No. 280-97-4082X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the basis of reprisal (prior EEO activity), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Appellant alleges she was discriminated against when: (1) she
was excluded from certain meetings; (2) supervisory assignments were
removed from her normal work assignment; (3) her desk was cleared out
without prior notification to, and not in the presence of, appellant;
(4) her E-mail address was changed without notifying appellant; and (5)
she was subjected to negative comments from a co-worker. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a GS-12 Instructional Systems Specialist, then detailed to the
position of Chief Faculty Development Division at the agency's United
States Army Command and General Staff College (CGSC), Fort Leavenworth,
Kansas. Appellant's chief complaint concerns her allegation that agency
management officials failed to include her in meetings to discuss the
impending reorganization of the CGSC, and when she took medical leave
following the announced reorganization, her workplace and computer were
disturbed. Agency management officials denied excluding her from meetings
and indicated that she had opportunities to present her suggestions to
agency management. Agency management officials noted that one such
meeting scheduled for June 5, 1996, was actually rescheduled to June
4, 1996, after appellant indicated she could not attend the meeting on
June 5. Appellant, however, failed to attend the rescheduled meeting on
June 4, 1996. Finally, agency management officials indicated that they
merely surveyed her desk and accessed her E-mail in order to evaluate
her current projects, only after she indicated that she would be out on
an extended medical leave.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on July 15,
1996.<1> At the conclusion of the investigation, appellant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a Recommended Decision (RD)
finding no discrimination. The AJ concluded that although some agency
management officials were aware of appellant's EEO activity, appellant
failed to establish a prima facie case of retaliation because she failed
to demonstrate that similarly situated employees who had not engaged
in prior EEO activity were treated differently with respect to each
of the issues. The AJ also noted that appellant offered no evidence
suggesting that any management official was motivated by retaliatory
animus. The agency's FAD adopted the AJ's RD. Appellant advances a
number of contentions on appeal, and the agency responds by restating
the position it took in its FAD, and requests that we affirm its 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 note that appellant failed to
present evidence of any nexus between her EEO activity and any of
the agency's actions, sufficient to establish a prima facie case of
retaliation. We therefore 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.<2> 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
appellant's contentions on appeal, the agency's response, and 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 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We note that AJ's RD inadvertantly states that appellant filed her
complaint on July 16, 1997.
2 Although the AJ did not analyze the complaint as retaliatory harassment,
as appellant so alluded on appeal, and which the EEO investigator
also considered, we note that the actions alleged by appellant, either
individually or as a whole, were not sufficiently severe or pervasive
so as to constitute a hostile work environment on the basis of reprisal.
See Garretson v. Department of Veterans Affairs, EEOC Appeal No. 01945351
(April 4, 1996); Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996).