Carolyn C. Bennett, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 11, 2003
01A30350 (E.E.O.C. Dec. 11, 2003)

01A30350

12-11-2003

Carolyn C. Bennett, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


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.