01a51152
05-16-2005
Cynthia K. Dowling, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Cynthia K. Dowling v. Department of the Army
01A51152
May 16, 2005
.
Cynthia K. Dowling,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A51152
Agency No. ARHOOD02DEC0004
Hearing No. 310-2004-00272X
DECISION
Complainant initiated an appeal from the agency's final order concerning
her equal employment opportunity (EEO) complaint of unlawful employment
discrimination. For the following reasons, the Commission AFFIRMS the
agency's final order.
The record reveals that complainant, a WAC Paramedic at the agency's
Darnall Army Community Hospital facility, filed an EEO complaint on
March 7, 2003, alleging that the agency had discriminated against her
on the bases of race (Caucasian), sex (female), and reprisal for prior
EEO activity when:
Complainant was subjected to a hostile work environment when she
was removed from federal service on November 8, 2002, during her
probationary period.
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, which was implemented by the agency in 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.
The AJ determined that, assuming arguendo that complainant had established
a prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged removal. Initially, the AJ
noted that during the relevant time period, complainant was employed
intermittently on an on-call basis. Specifically, complainant's
supervisor testified that complainant was removed due to the incident
on June 14, 2002, when, despite her instruction, complainant refused
to go on the ambulance run to transfer a pediatric patient to Wilford
Hall in San Antonio. The supervisor also testified that complainant
became upset with her and left her work without permission and did not
return for the remainder of her shift on that day. The Chief Paramedic
testified that she knew of no other paramedic who walked off the job and
was not disciplined. The Chief of the Department of Emergency Medicine
testified that although complainant was a competent paramedic, he could
not condone her actions on June 14, 2002. He also testified that he was
not aware of any other situation where an employee had walked off the job.
The AJ noted that although complainant testified that her supervisor
was jealous of her, it was not discrimination. The AJ determined that
complainant failed to show that the agency's foregoing reasons were a
pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
hereby AFFIRMED because a preponderance of the record evidence does not
establish that discrimination occurred.
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
May 16, 2005
__________________
Date