01A03586
12-30-2002
Ava Gunter Gore, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Ava Gunter Gore v. Department of Justice
01A03586
December 30, 2002
.
Ava Gunter Gore,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A03586
Agency No. M-97-0031
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant, who had the mid-level management job of Chief Deputy
U.S. Marshal, claimed that the agency discriminated against her based
on race (Caucasian), sex (female), and reprisal for prior EEO activity
when in July 1997 her supervisor, the U.S. Marshal (USM) (black male)
made a sexist comment to her and a racial comment in her presence,
harassed her, and then removed her operational authority.
Complainant managed a subordinate front line supervisor, who was a
Supervisory Deputy U.S. Marshal (SDUSM) (white female). The SDUSM
supervised Deputy U.S. Marshals (DUSM), Criminal Investigators, GS-12.
The DUSM (male, apparently white) accidentally discharged (AD) his gun.
Agency policy mandated that a report on an AD be completed within three
days of the AD. To make the DUSM's report appear timely, complainant
instructed the DUSM and SDUSM to backdate it by over two weeks.
In addition, complainant authorized the DUSM to attend training outside
the district when the Office of Internal Affairs (OIA) was scheduled
to investigate the AD, and the DUSM was gone when OIA arrived. He was
called back.
While the USM harshly and repeatedly confronted complainant, she has
not shown by a preponderance of the evidence that this was due to her
race, sex, or reprisal for EEO activity rather than her backdating
the AD report, authorizing the DUSM to leave the district when an OIA
investigation was scheduled, and the USM's belief that the later action
was deliberate, causing him to lose trust. Complainant stated that her
working relationship with the USM was good until she authorized the DUSM
to leave the district. The USM's sexist remark to the effect that it was
odd he had the only district with these problems and he was a male with
female management was isolated. A fair interpretation on the racial
remark to the DUSM was that the USM was referring to himself, i.e.,
bet on black, as he was pointing to himself when the remark was made.
There is no evidence of a pattern or frequency of sexist or racial
remarks. Further, the USM also took harsh action against the DUSM,
a male, but did not do so to the SDUSM, a white female, and they were
also involved in the events the USM believed constituted misconduct.
Regarding reprisal, the USM did not learn about the complainant's EEO
activity until December 1997. While the complainant and others imply that
the USM overreacted, the record does not establish that her misconduct
was minor.
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 preponderance of the evidence of record does not establish
that discrimination occurred.
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 30, 2002
__________________
Date