01A30350
12-11-2003
Carolyn C. Bennett v. Department of the Army
01A30350
December 11, 2003
.
Carolyn C. Bennett,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A30350
Agency No. AVEURE0004A0110
Hearing No. 380-A1-8009X
DECISION
Complainant timely initiated an appeal from the agency's final action
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 action.
The record reveals that complainant was employed by the agency as a
GS-1701-9 Training and Curriculum Specialist (TCS) at the agency's Fort
Lewis, Washington facility (�facility�). In her position, complainant's
duties included training and educating facility staff in proper child
care, assessing the quality of child care and assisting in the prevention
of child abuse. One of complainant's functions as a TCS was to act as
a consultant to the director of a Child Development Center (CDC) at the
facility, and during the relevant period, complainant was assigned to
Module 9 at the facility's Beachwood CDC.
Complainant filed a formal EEO complaint on August 12, 1998, alleging
that the agency had discriminated against her on the bases of disability
(perceived mental and physical impairments)<1>, age (D.O.B. 1/12/49),
and reprisal for prior EEO activity when: (1) an agency official
observed her when she attempted to kneel while teaching a CPR class,
and that she was told in January 1998 that she would be out of work as
she could not kneel; (2) the agency detailed her from the Youth Services
unit to Child Development Services in January 1998 and then reassigned
her in March 1998; (3) co-workers made comments about her between
January 1998 and May 1998, including calling her �schizo,� �insane� and
stating that she was �freaking out�; (4) an agency supervisor accused
her in or about February 1998 of bringing up information from a past
EEO investigation; (5) an agency supervisor requested that she apply
for the entry level training class in about March 1998; (6) co-workers
asked her about menopause and hot flashes and remarked about her red
skin when she had a hot flash; (7) three agency officials met with her
on or about March 16, 1998 and asked her what she thought her role was
and what the Special Needs Standard Operating Procedure (SN) meant;
(8) two agency officials solicited statements from Module 9 staff in
about March 1998 regarding a poster complainant felt was inappropriate;
(9) an agency supervisor assigned her �busy work� on or about April 1,
1998; (10) an agency official issued her a proposed 1-day suspension
in April 1998 for telling the parent of a child that the child may
be gifted after the Center Director instructed her in March 1998 not
to tell the parent her opinion; the suspension was later reduced to a
letter of reprimand in May 1998; (11) an agency official provided her
with the opportunity for a Fitness for Duty examination in May 1998;
(12) an agency official removed Module 9 from her training workload in
May 1998; (13) the agency detailed her from the Beachwood CDC to the
office of the Director of the Personnel and Community Activities (DPCA)
in May 1998 and then reassigned her to unspecified duties as of July 21,
1998; (14) an agency supervisor presented with her performance objectives
without seeking her input and the objectives created a higher standard
than other TCS's; (15) an agency supervisor commented that complainant
was a security risk.
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 on several of the allegations made
by complainant, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination on any basis with regard to allegations (1)-(4), (6)
and (15) because she failed to identify any similarly situated employee,
not in her protected class, who was treated differently under similar
circumstances. On those allegations, the AJ found that complainant
had proffered no evidence which supported a finding that there were
material facts in dispute and thus a decision without a hearing was
appropriate in favor of the agency. On these issues, the AJ found that
there was no evidence that the agency reassigned or disciplined a CDS
employee for disobeying the instruction of a CDC Director, nor did the
agency reassign a TCS from a specific Module after the Module's staff
made such a request. In addition, the AJ found that complainant failed
to provide any substantive evidence that any co-workers made harassing
comments during the period of January 1998 through May 1998, nor did she
provide evidence that a co-worker asked about her menopause during the
relevant time period. Further, the AJ found that there was no evidence
that the agency knew, or should have known, of any harassing comments
by any co-workers and failed to take action.
Addressing complainant's allegations that the agency discriminated
against her due to perceived physical or mental disability under
the Rehabilitation Act, the AJ noted that a reasonable accommodation
analysis was inapplicable as complainant did not claim that she needed any
accommodation during the relevant time period, or that she had requested
an accommodation and one had been denied. Rather, the AJ noted that
the inquiry under the Rehabilitation Act focused on whether the agency
discriminated against complainant based on disparate treatment due to
perceived physical and/or mental impairments.
The AJ then found that complainant failed to prove a prima facie case of
disparate treatment discrimination on any of the issues which had been
litigated at the hearing. In so finding, the AJ noted that complainant
failed to establish that there were any similarly situated employees not
in her protected groups who were treated more favorably under similar
circumstances. Specifically, the AJ found that regarding issues (5),
(7)-(9) and (12) and (14), complainant failed to establish a prima
facie case of discrimination on any basis. In so finding, the AJ
noted that there was no basis upon which to conclude that complainant
was treated differently due to her age and/or perceived disability.
Finally, the AJ found that regarding complainant's allegations (10),
(11) and (13), while she did prove a prima facie case of retaliation,
complainant failed to prove by a preponderance of the evidence that
the agency's articulated reasons for its actions were a pretext for
retaliation. The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously made before the AJ,
while the agency urges the Commission to affirm its final action.
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.
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 properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We find that
on the issues upon which the AJ held a hearing, complainant failed to
demonstrate by a preponderance of the evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's age or perceived
mental or physical disability. Regarding the several allegations upon
which the AJ issued a decision without a hearing, we concur with the AJ's
finding that the investigative record had been adequately developed and
yet there were no genuine issues of material fact. See Petty v. Dept. of
Defense, EEOC Appeal No. 01A24206 (July 11, 2003). We thus 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
December 11, 2003
__________________
Date
1 The Commission notes that complainant did not allege that he was
an individual with a disability, but alleged that he was subjected to
disparate treatment by facility management due to unspecified perceived
mental and physical disabilities.