0120083083
09-15-2008
Anjoleen Y. Baca de Quintero, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Anjoleen Y. Baca de Quintero,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083083
Agency No. ARSMDC06OCT04336
Hearing No. 320200800097X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 20, 2008 final order concerning her equal
employment opportunity (EEO) complaint alleging 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.
On November 16, 2006, complainant, an Electronics Engineer at Peterson
Air Force Base, Colorado, filed an EEO complaint alleging that the
agency discriminated against her on the basis of reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
when she was given a nine-day suspension, effective September 22, 2006.
Following the investigation into her complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ). On June 4, 2008,
the AJ, after proper notice to the parties, issued a decision by summary
judgment in favor of the agency. The agency adopted the AJ's decision
in its final order. The instant appeal followed.
In his decision, the AJ concluded that the evidence of record supported
the agency's contention that it suspended complainant on the supported
charges of making malicious statements against a contractor, making
inappropriate comments, and conduct unbecoming a federal employee.
Briefly, the AJ found that the record indicated that an agency contractor
sent a letter of complaint regarding sexual and personal harassment
of one of its employees by complainant. Specifically, the contractor
sought assistance from agency management in stopping the harassment of
its employee and "in correcting the growing hostile environment that
has been created within her assigned work area." As a result of the
letter, agency management conducted an investigation into the situation.
The agency asserted that the investigating officer had never met or
worked with complainant, and was not aware of her prior EEO activity.
The investigation substantiated the claim that complaint had made
inappropriate comments of a sexual and personal nature to and about the
contract employee,1 as well as engaged in other detailed improprieties
such as inappropriately touching both government and contract employees
and making them feel uncomfortable, and threatening contract employees
with termination. Management witnesses stated that, based on her conduct,
a fourteen-day suspension was proposed for complainant, which was later
reduced by the deciding official to nine days. Management asserted that
in addition to the investigating officer, the deciding official on the
suspension was also not aware of complainant's prior EEO activity.
The AJ found that summary judgment was appropriate in this case because
complainant did not proffer evidence from which he could conclude that
there are any genuine issues of material fact or credibility issues
necessitating a hearing. The AJ found that complainant failed to show
there was any nexus between her suspension and her protected activity
and, therefore, failed to prove that the agency's articulated reasons
for her suspension was a pretext to unlawfully retaliate against her.
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 order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that prohibited retaliation occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 15, 2008
__________________
Date
1 For example, the investigative report asserted that complainant told
members of a team deploying to Bahrain that the contract employee was
"easy" and if they got a couple drinks in her, she would sleep with them.
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0120083083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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