0120070145
03-30-2009
Carolyn Page, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Carolyn Page,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120070145
Agency No. 040020511180
DECISION
On October 7, 2006, complainant filed an appeal from the agency's
September 6, 2006, final decision concerning her equal employment
opportunity (EEO) complaint alleging 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
At the time of events giving rise to this complaint, complainant worked as
a Transition Program Manager, GS-301-11, with the Naval Support Activity
in New Orleans, Louisiana. On September 14, 2004, complainant filed an
EEO complaint alleging that she was discriminated against and subjected
to a hostile work environment on the bases of race (African-American),
sex (female)1, age (53), and reprisal for prior protected EEO activity
[under Title VII] when:
(1) in April 2004, her workplace was relocated to another building;
(2) on May 13, 2004, she was not allowed to relocate her file cabinet
of resource material to her new work location;
(3) on or about April 29, 2004, her subordinate employees were
removed from her supervision;
(4) she was either denied leave or received an untimely response to
her request for leave to be taken August 2 - 6, 2004;
(5) she was denied an optional work schedule, while other employees
were permitted optional work schedules;
(6) prior to ultimate approval, her leave requests were routinely
disapproved; and
(7) her supervisor verbally communicated with her in an abrupt,
discourteous, and degrading manner.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that she was
subjected to discrimination as alleged.
The FAD initially found that by letter dated May 16, 2006, the agency had
dismissed her claim wherein she alleged that because of discrimination and
retaliation, she was forced to accept an early retirement. This claim was
dismissed for failure to comply with applicable time limits because the
effective date of complainant's retirement was October 1, 2004, however,
complainant indicated to the agency on March 11, 2005, that she would
pursue her complaint with the Merit Systems Protection Board, failed to
do so, and then raised the issue with the agency again on June 11, 2005.
The FAD noted that even March 11, 2005 was well beyond the 45-day time
limit for seeking EEO counseling (or seeking to amend her complaint).
The FAD further noted that the agency also dismissed complainant's claim
that because of disability discrimination, she was denied reasonable
accommodations. This claim was dismissed because complainant failed to
elaborate on that claim by identifying the medical condition and the
type of accommodation needed. The FAD affirmed the dismissal of both
claims. The FAD further addressed management's explanation for each
alleged incident of harassment, and concluded that the harassment was
not frequent, severe, physically threatening, or humiliating enough to
establish a hostile work environment. The FAD found no discrimination.
Complainant has submitted several documents with this appeal, but she
did not submit a timely supporting brief.2 In response to the appeal,
the agency first notes that complainant's brief in support of appeal was
not timely filed. The agency further asserts that the alleged harassment
is not sufficiently severe or pervasive as to be unlawful. Further,
the agency argues that complainant offers no evidence that she timely
raised constructive discharge, and notes that complainant is aware of the
timeframes because she has previously participated in the EEO process.
Finally, the agency contends that complainant has provided no persuasive
evidence of a discriminatory motive.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Initially, we find that the agency properly dismissed complainant's
"reasonable accommodation" and constructive discharge claims for the
reasons discussed above. With regard to complainant's harassment claim,
based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on her membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The evidence in the record
is insufficient to support a finding that management's actions towards
complainant were based on her membership in a protected group. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6. In addition, the alleged harassment
is not sufficiently severe or pervasive as to be considered unlawful.
To the extent we assume, arguendo, that the alleged incidents constitute
adverse employment actions and were timely raised before an EEO counselor,
we apply a disparate treatment analysis to each of them. The allocation
of burdens and order of presentation of proof in a Title VII or ADEA case
alleging disparate treatment discrimination is a three step procedure:
complainant has the initial burden of proving, by a preponderance of the
evidence, a prima facie case of discrimination; the burden then shifts to
the employer to articulate some legitimate, nondiscriminatory reason for
its challenged action; and complainant must then prove, by a preponderance
of the evidence, that the legitimate reason offered by the employer was
not its true reason, but was a pretext for discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Assuming complainant can
establish a prima facie case of discrimination on the alleged bases, the
agency has articulated legitimate, nondiscriminatory reasons for each
of its actions. Complainant has not established that the articulated
reasons are more likely than not, pretext for discriminatory animus.
We note that we do not have the benefit of an AJ's findings after a
hearing and therefore, we can only evaluate the facts based on the
weight of the evidence presented to us. Based on a thorough review of
the record, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 30, 2009
__________________
Date
1 Sex was added as a basis during the investigation of the complaint.
2 Complainant filed her Notice of Appeal on October 12, 2006, and
subsequently submitted a statement dated December 7, 2006, in which she
requests compensatory damages and reiterates her version of the facts
and her arguments. In order to be considered timely according to 29
C.F.R. � 1614.403(d), her statement would have needed to be submitted
within 30 days of when the Notice of Appeal was filed, that is, on or
before November 13, 2006.
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0120070145
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013