01A14946
10-31-2002
Betty A. Day, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Betty A. Day v. Department of the Air Force
01A14946
October 31, 2002
.
Betty A. Day,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A14946
Agency No. AFAA97009
Hearing No. 280-AO-4317X
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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleges she was discriminated against
on the bases of age (DOB, 9/14/40), disability (depression) and reprisal
(prior EEO activity) when she was issued a performance counseling letter
on June 19, 1997 and when she was denied a reasonable accommodation in
the form of adequate training.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, an Auditor (GS-0511-11) at the
agency's Air Force Audit Agency, Scott Air Force Base, Illinois, filed
a formal EEO complaint with the agency on August 7, 1997, alleging
that the agency had discriminated against her as referenced above.
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of age discrimination because she failed to show she was meeting the
basic performance standards expected of her or that she was counseled
when others similarly situated but not in her protected group were
treated more favorably. The AJ also concluded that complainant failed
to demonstrate she was an individual with a disability at any time prior
to her receipt of the counseling letter or that the agency knew of her
disability such that she was entitled to a reasonable accommodation.
More specifically, the AJ determined that complainant admitted she
never advised the agency of her disability and that it was not until
she received the counseling letter did she realize she suffered from
depression. Because the agency was not aware of her disability, the
AJ concluded it was not responsible for providing her with a reasonable
accommodation during the time in question.
The AJ also concluded that complainant did not established a prima facie
case of reprisal for her prior EEO activity because she failed to show a
causal connection between her complaint activity in 1992 and the actions
of her supervisors in 1997. The AJ relied on evidence that complainant
was twice promoted after she transferred to Scott Air Force Base, in
concluding that complainant failed to prove by a preponderance of the
evidence that the agency retaliated against her when she was counseled
on her poor performance.<1>
The AJ further concluded that assuming complainant established a prima
facie case on the bases alleged, the agency articulated legitimate,
nondiscriminatory reasons for giving complainant counseling for poor
performance. The AJ found that there was undisputed testimony that
complainant failed to produce audits of the quality expected of a GS-11
level auditor. The AJ also concluded that complainant did not refute by
competent evidence that she was given more in-depth one-on-one training
than other auditors, and that she had been assigned the less complex
auditing projects than other auditors at her same level.
The agency's final order implemented the AJ's finding of no
discrimination.
On appeal, complainant essentially restates arguments previously made
at the hearing. In response, the agency restates the position it took
at the hearing, and requests that we affirm its final order.
ANALYSIS AND FINDINGS
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 was supported by substantial evidence in the record and that
her finding of no discrimination is sustained. We note that complainant
failed to present evidence that any of the agency's actions were based
on her age in the sense that �but for� her age she would have been
treated differently. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973); Loeb v. Textron, Inc. 600 F.2d 1003 (1979).
We also conclude that complainant failed to establish that the agency
was on notice of her depression and therefore, it was not required to
reasonably accommodate her. See 29 C.F.R. �1630 et. seq. Thus, even
assuming complainant was depressed during the time she began working
at Scott Air Force Base in 1993, by her own admission, she did not tell
her supervisor of her medical condition.
Although complainant contends her supervisors should have been aware
from her actions that she was depressed, she fails to state what symptoms
she exhibited and fails to explain how others would have known. In this
regard, complainant testified that even she was unaware that she had a
debilitating mental condition during the time in question, which is more
persuasive that the agency's managers could not be expected to know she
had a disability. Consequently, we conclude that the AJ's conclusion
the agency was not aware of complainant's disability and as a result,
was not required to provide her an accommodation, was correct.
We turn now to complainant's claim of reprisal. Complainant can establish
a prima facie case of reprisal by showing that (1) she engaged in
protected activity; (2) the agency was aware of the protected activity;
(3) she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
see, Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). Shapiro
v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Complainant failed to show that the AJ's finding that no nexus existed
between her protected activity and the counseling she received was not
entitled to deference and was not supported by substantial evidence in
the record. The record established that complainant told her first line
supervisor that she had filed an EEO complaint prior to her transfer
to Scott Air Force Base. The AJ concluded, however, that the evidence
established complainant had difficulty with parts of her work which
required her supervisors to address and correct. Their actions, the
AJ concluded had nothing to do with complainant's prior EEO activity.
Our review of the record indicates that there is substantial evidence
to support the AJ's conclusion and there is no reason to disturb her
findings.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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
October 31, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The AJ ruled that complainant had not properly raised breach of a
settlement agreement entered in settlement of the 1992 complaint,
and that complainant could not reopen issues she raised in that
complaint. Complainant has not argued on appeal that the AJ's ruling was
incorrect and accordingly, we will not address the issue in this decision.