01a40339
07-07-2005
Carla Y. Kennard, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Carla Y. Kennard v. Department of the Army
01A40339
July 7, 2005
.
Carla Y. Kennard,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A40339
Agency No. 01-024
Hearing No. 310-A1-5504X
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., 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. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, a Customer Service Associate at
the agency's Fort Hood, Texas Main Service Station filed a formal EEO
complaint on December 22, 2000, alleging that the agency discriminated
against her when she was subjected to a hostile work environment on the
basis of disability<0> when:
(1) the Store Manager (S1) failed to keep the confidence of her
impairment;
S1 told other employees about her disability, causing her to be
ridiculed;<0> and
S1 knew of the ridicule by co-workers and refused to stop it.
Complainant additionally alleged that she was subjected to harassment
on the bases of her race (white), sex (female) and disability when:
She was never informed of work policy changes and other information
important to her job duties.
Complainant additionally alleged that she was subjected to harassment
on the basis of her sex when:
A mechanic (M1) called her �baby� and �baby doll�.
Complainant further alleged that she was subjected to harassment on the
bases of her race and disability when:
co-workers harassed her,<0> threatened her with harm, and intimidated
her to the point where she was forced to resign (constructive discharge)
on or about October 28, 2000.
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.
In his decision, the AJ initially found the claim not credible that S1
revealed to complainant's co-workers that complainant had a disability.
The AJ noted that there is no evidence to support this claim, and that it
is mere speculation on the part of complainant. The AJ found that all
of the witnesses testified that complainant had mood swings, and there
was agreement that S1 had made statements to the effect that complainant
was sensitive. The AJ noted that one employee (A1) admitted that she
had placed the �Prozac� note on complainant's locker, but that she had
done this in a joking manner to indicate that complainant was touchy,
and that maybe she should go on medication. The AJ found, however, that
all of the witnesses testified that they were not aware that complainant
was taking Prozac or that she had a mental disorder at the time the
�Prozac� note was written. As to the incidents of alleged race-based
harassment, the AJ found that assuming complainant's description of the
racial incidents are true, they are, collectively, inadequately severe
or pervasive to constitute unlawful harassment.
As to incident (4), the AJ found that the allegation was not sustained.
In so finding, the AJ noted that based on the weight of the testimony,
there was no support to the allegation that complainant was excluded
from potluck lunches at which policy was discussed, unless perhaps
she was self-excluded. The AJ further found little support for the
proposition that training or policy was discussed at those lunches.
As to incident (5), the AJ noted that complainant alleged that she
was called�baby� and �baby doll� by a mechanic (M1) at the agency.
M1 testified that he would not use those terms, however, he may have
used the term �babe� such as to say �could you throw me that wrench,
babe?� The AJ further noted that complainant added this allegation at
the suggestion of her EEO counselor, and that it was not part of her
original concern. The AJ concluded that M1's version of what occurred
was more credible than complainant's version, and that in any event,
this is the only allegation relating to harassment based on sex, and it
would not constitute severe or pervasive harassment. The AJ therefore,
concluded that complainant was not subjected to a hostile work environment
based on her sex.
The AJ then addressed incidents (3) and (6) jointly. The AJ found that
there is persuasive evidence that complainant was subjected to abusive
language and treatment by another employee (E1). The AJ then addressed
the question of whether complainant is an individual with a disability
pursuant to the Rehabilitation Act. The AJ found that complainant
testified that her medication was completely effective in controlling her
bipolar disorder, her sleeping problems, and her problems with judgment.
The AJ noted that complainant's attorney contends that complainant is
substantially limited in the major life activity or working, however,
the record contains very little evidence in support of this assertion.
The AJ concluded that complainant failed to prove that she is an
individual with a disability pursuant to the Rehabilitation Act.
The AJ nevertheless proceeded to assume arguendo that complainant was
an individual with a disability, and determined that there is little
evidence to indicate that the manner in which complainant was treated was
due to her disorder. The AJ additionally found that the major factors in
complainant's decision to leave her employment had nothing to do with her
disorder. Specifically, the AJ found that by complainant's own admission,
a mere two weeks before she decided to leave, she cited as her reason
childcare arrangements, leave policies, dental work, and the fact that her
husband was returning from Korea and she wanted to spend time with him.
The AJ further found it not credible that M1 harassed complainant with
the goal of getting complainant to resign, given complainant's assertion
that on October 14, 2000, M1 tried to talk complainant out of resigning.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ's finding of no discrimination
is inconsistent with the facts, and that complainant proved her case of
discrimination against the agency. In response, the agency requests
that we affirm its final order. 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).
An AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held.<0>
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision referenced the appropriate regulations,
policies, and laws.<0> Assuming arguendo that complainant is an
individual with a disability, she failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected groups. We discern no basis to disturb
the AJ's decision. 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
July 7, 2005
__________________
Date
0 1Complainant contends that she has bipolar disorder and that it
substantially limits her ability to sleep and to reason.
0 2Complainant contends that she told S1 about her mental disorder in
August 2000 because her doctor was changing her medication and it could
affect her sleeping habits. Complainant stated that she requested that
S1 not disclose her disorder to anyone. Complainant alleges, however,
that she learned that S1 had disclosed her disability to other employees
when her co-workers started to comment that she should take medicine, and
when, in October 2000, she found a note stating �Prozac� on her locker.
0 3In general, complainant contends that her workplace was permeated with
bullies, that she was ridiculed, threatened, laughed at, and physically
attacked. Specifically, as to the basis of race, complainant alleges
that two co-workers referred to her as a �dumb white girl� and �white
bitch,� and told her that she knew nothing about life or anything else
because she was white. Additionally, complainant alleges that the
co-workers told her that white girls are too sensitive and are easy to
beat up, that all white women wanted black men, and black men wanted
white women because they are so dumb. Complainant also alleged that
her co-workers accused her of getting twice as much money as a black
employee because she was white. As to her disability, complainant cites
the �Prozac� incident described above, and further contends she was
called �sensitive,� a �crybaby,� a �tattletale� and other names.
0 4Initially, we note that we find that incidents (1), (2), and (3) are
part and parcel of the same claim which is that S1 allegedly disclosed
complainant's disorder to co-workers, who consequently ridiculed
complainant, and that S1 failed to stop such harassment which caused
complainant, to resign.
0 5As the AJ found that complainant was not subjected to harassment on
any basis, he need not have addressed the constructive discharge claim
which would have only affected liability.