0120061158
02-25-2009
Desiree M. Brown, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Desiree M. Brown,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120061158 (formerly 01A61158)
Hearing/Agency Nos. 340-2004-00184X
(DFAS-DE-SANB-03-025)
340-2004-00349X
(DFAS-DE-SANB-99-013)
340-2004-00350X
(DFAS-DE-SANB-99-021)
340-2004-00351X
(DFAS-DE-SANB-01-018)
340-2004-00352X
(DFAS-DE-SANB-99-008)
340-2004-00354X
(DFAS-DE-SANB-99-029)
340-2004-00355X
(DFAS-DE-SANB-00-016)
340-2004-00356X
(DFAS-DE-SANB-00-007)
340-2004-00357X
(DFAS-DE-SANB-02-001)
340-2004-00358X
(DFAS-DE-SANB-02-009)
340-2004-00359X
(DFAS-DE-SANB-02-011)
340-2004-00360X
(DFAS-DE-SANB-02-010)
340-2004-00361X
(DFAS-DE-SANB-02-013)
340-2004-00362X
(DFAS-DE-SANB-01-028)
340-2004-00363X
(DFAS-PSO-SB-99-008)
340-2004-00353X
(DFAS-DE-SANB-98-040)
DECISION
Complainant filed an appeal from the agency's November 8, 2005 final
order 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., 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. For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Accounting Technician (GS-0525-05/06) at the agency's facility in
San Bernardino, California. Between 1998 and 2003, complainant filed
a series of sixteen EEO complaints alleging that she was discriminated
against on the bases of race (African-American), sex (female), disability
(tendonitis, carpel tunnel syndrome, and major depression), age (over 40),
and reprisal for prior protected EEO activity.1
At the conclusion of the investigations2, complainant was provided with a
copy of each report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested a
hearing for each complaint. The AJ assigned to complainant's cases held
a hearing for complainant's complaints on February 2, 3, and 4, 2005.
Thereafter, the AJ issued her decision on September 14, 2005.
In her decision, the AJ observed that seven witnesses testified at the
time of the hearing. Complainant did not testify. The AJ set forth
the claims of complainant's complaints, and ruled as follows.
DFAS-DE-SANB-98-040
Complainant alleged discrimination, based on her disability
(carpal tunnel tendonitis) and race (African American) when:
1. Beginning on January 23, 1998, management failed to
reasonably accommodate her disability and advised her that her
medical documentation was not sufficient to justify the purchase
of ergonomic equipment.
2. Four months after complainant advised management of her
disability, management increased her work load and counseled her
about her productivity and advised her that if her productivity
did not increase, termination was possible.
The AJ noted that with respect to claim (1), the agency provided
complainant with virtually every accommodation that complainant
requested in connection with her request for supplies and a work
station consistent with her documented disabilities. The AJ noted that
complainant was not cooperative in providing the agency with the medical
documentation it requested to determine if complainant was a qualified
individual with a disability under the definition of Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
However, the agency did provide complainant with an ergonomic chair and
keyboard to accommodate her functional limitations. The AJ found that
any delays in the processing of complainant's request were insufficient
to show a violation of the Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.
Regarding claim (2), the AJ found that complainant did not establish a
prima facie case of discrimination based on race or disability because
she did not identify any employees that were treated differently than
she was treated. Accordingly, the AJ found that complainant did not
show that discrimination occurred in this complaint as alleged.
DFAS-PSO-SB-99-008
Complainant alleged harassment based upon her race, sex and
reprisal for a one year period when agency human resource
officials communicated with complainant's health care provider
regarding her medical appointments.
The AJ found that complainant was not aggrieved under any of the
statutes enforced by the Commission when the agency responded to
calls from complainant's health care provider. The AJ noted that the
agency did not initiate the calls and that the human resources employees
routinely redirected calls from health care providers to the appropriate
supervisors. The AJ found that complainant did not show any harm when
the agency simply responded to the calls as described in complainant's
complaint.
DFAS-DE-SANB-99-008
Complainant alleged that she was subjected to a hostile work
environment based upon her race, and reprisal, when on February 2,
1999, MS1 wrote a negative memorandum for record to complainant's
supervisor, S1, and to complainant's branch chief, MS2, which
was placed in her file.
The AJ found that in the memorandum written by MS1, he was critical of
complainant's professionalism and conduct. However, the AJ found that
the agency did not take any action against complainant based on the
memorandum, nor was complainant able to show any other harm. The AJ
found that complainant was not aggrieved by the memorandum and further,
was unable to identify any other employee exhibiting the same conduct in
the work place, not in her protected groups, who was not treated the same.
Accordingly, the AJ found this complaint should be dismissed.3
DFAS-DE-SANB-99-013
Complainant alleged she was harassed based upon her race, and
reprisal, since February of 1998, by management officials T1
and T2, regarding a permanent change of station.
In this complaint, the AJ noted that complainant described her relocation
to San Bernardino, California. The AJ found that some of complainant's
moving expenses were disallowed by the agency for various reasons,
resulting in a debt complainant owed to the agency of $953.56. The AJ
found that complainant communicated with the agency travel expense
officials regarding the fund she had received for relocation and why
some of her claimed expenses were denied. For example, complainant
did not provide receipts for two nights' lodging and accordingly, the
agency did not pay for complainant's lodging for those two nights.
The AJ reasoned that the agency officials who denied complainant's
various disallowed expenses were located in Indianapolis and were
unaware of complainant's race or her EEO activity. The AJ found that
complainant did not establish a prima facie case of race or reprisal
discrimination and therefore found no discrimination with respect to
this complaint. Moreover, the AJ found the agency's explanation for
its handling of complainant's permanent change of station expense to be
a nondiscriminatory explanation for its actions.
DFAS-DE-SANB-99-021
Complainant alleged she was discriminated against based on race,
sex, and reprisal when she was denied annual leave for June 11,
1999, and administrative leave for June 22, 1999, and placed
on absence without leave for not reporting to work on both of
those days.
The AJ found that assuming that complainant had established a prima
facie case of race, sex or reprisal discrimination with respect to her
leave request for June 11, 1999, that the agency articulated reasons
for its actions that complainant was unable to rebut. Specifically,
complainant's coworkers identified by complainant who asked for leave in
advance, stated their reasons for requesting leave and asked for several
hours of leave instead of whole days when their needs only required a
few hours. The AJ considered the testimony of complainant's supervisor,
MS2, who indicated that complainant had an attendance problem at the time
that her coworkers did not have. The AJ observed that complainant did not
communicate her leave requests to her supervisor as did her coworkers.
With respect to June 22, 1999, the AJ noted that previously, complainant
had been allowed to use administrative leave for attending a Department
of Labor hearing. MS2 was later informed that the agency did not have
to provide administrative leave for such hearings and so, her request
for administrative leave on June 22, 1999 was denied. The AJ found the
agency was not motivated by complainant race, sex or reprisal and so,
the AJ found no discrimination occurred in this case as alleged.
DFAS-DE-SANB-99-029
Complainant alleged she was discriminated against based on her
race and sex when:
1. The Principal Deputy Director (M1) refused to answer
complainant's inquiries regarding her leave and earning statements
and her request that her sick leave taken on July 12, 1999, be
changed to administrative leave when complainant left the work
place because the air conditioning was not working properly in
the building;
2. A time keeper (T3) changed complainant's time sheet, made
improper timekeeping entries and refused to answer complainant's
questions regarding her leave and earning statement; and
3. The payroll monitor (T4) did not answer her inquiries
regarding her leave and earnings statement.
4. Complainant was harassed based on her race, sex, and
retaliated against when:
a. S2, after becoming her supervisor in August of 1999,
constantly monitored complainant's leave usage,
breaks, lunch, and work load;
b. S2 delayed complainant's request to move to another location in the
office; and
c. S2 sat directly beside her.
With respect to claim (1), the AJ found that M1 admitted he did not
read many of complainant's electronic mail messages, but that he also
received other messages he also did not open or read. M1 denied refusing
to answer her inquiries saying that she frequently sent messages to
multiple recipients. The AJ found that complainant failed to identify
any similarly situated employees, not in her protected groups, who
received administrative leave when they left work early on July 12,
1999. Regarding claims (2) and (3), the AJ found that no adverse action
resulted from the incidents described. Rather, the AJ found that the
changes made to her time card by T3 resulted in no change in complainant's
time or hours recorded, but changed the codes entered on her time card.
The AJ found that claims (2) and (3) failed to state a claim because
complainant was not harmed by T3's actions.
Regarding claim (4), the AJ found that S2 explained that he monitored
complainant's leave and other aspects of her work because of her record of
leave abuse. Complainant, S2 stated, had a poor attendance record and did
not abide by the agency's leave policy regarding her requests for leave.
The AJ noted that other employees did not abuse the leave policy and
so, they were not monitored as complainant was. S2 also stated that
because he was new to the organization, he chose to sit among his staff
and chose in particular to sit next to complainant's desk. The AJ found
that complainant did not show that S2 was motivated by her race, sex or
reprisal for her prior EEO activity, but by her leave abuse problem.
Further, the AJ found the evidence failed to show that the agency's
decision to deny her request to move away from S2, was motivated by
anything other than her leave abuse problem. Moreover, the AJ found that
complainant suffered no adverse action when her work was redistributed
because she was absent. The AJ found no discrimination occurred.
DFAS-DE-SANB-00-007
Complainant alleged she was discriminated based on race, sex
and reprisal when:
1. Complainant was subjected to a stressful, hostile
and harassing work environment when the following incidents
allegedly occurred: beginning August 25, 1999, and continuing,
her supervisor, S2, singled her and constantly monitored her
behavior but did not monitor complainant's White or Asian
coworkers' behavior;
2. On September 23, 1999, an agency supervisor (S3) demanded
that complainant stop making negative remarks about local
management personnel and provoked a verbal altercation with her;
3. On approximately September 29, 1999, complainant
experienced financial hardship because supervisor, S2, changed
complainant's time and attendance records to reflect that she
were absent without leave (AWOL) for the period of August 29
through September 11, 1999, and for the period of September 12
through September 25, 1999;
4. On October 8, 1999, complainant received a Letter of
Indebtedness because S2 made changes to complainant's official
time and attendance record and this situation created a financial
hardship for complainant and has established a fraudulent debt;
and
5. On October 8, 1999, S3 advised complainant that S3 was
complainant's acting supervisor and repeatedly monitored and
scrutinized complainant's work activities throughout the day.
The AJ found that S2's reasons for singling her out for monitoring, as
discussed in her previous complaint (DFAS-DE-SANB-99-029) was justified
because complainant had an attendance and leave issue that S2 addressed.
Complainant, the AJ noted, did not identify any White or Asian employees
who also had attendance problems, who were treated differently. The AJ
observed that neither party disputed the altercation that occurred between
S3 and complainant. The AJ found that claim (2) failed to state a claim
because S3 did not issue any discipline to complainant and nothing in
the record showed that complainant was harmed by S3's actions. S2,
the AJ found, stated that he changed complainant's time and attendance
records to reflect the time that complainant spent away from her desk,
to show that she was absent without leave (AWOL) and not working (claim
(3)). The AJ found that similar to her other claims, complainant did not
identify any other employees who spent time away from their desks who were
not charged AWOL by S2. The AJ found that with no employees to compare,
complainant's claim that S2 discriminated against her failed. Claim (4),
the AJ observed, resulted from complainant's time and attendance being
changed to reflect the times she was absent without leave, which created
a discrepancy between her regular pay and the hours she actually worked.
The AJ found that complainant did not show the letter of indebtedness
was motivated by discrimination. Rather, the AJ found that the letters
were sent because complainant owed the agency money from when she was
paid when she was not actually working. Lastly, regarding claim (5),
the AJ found that complainant was treated differently by S3 because of her
leave record, not because of her race, sex or reprisal. Accordingly,
the AJ found that complainant did not prove that discrimination occurred
as alleged in agency case number DFAS-DE-SANB-00-007.
DFAS-DE-SANB-00-016
Complainant alleged she was subjected to a hostile work
environment based upon her race, sex, disability (major
depression), and retaliation, when a memorandum for record dated
January 18, 2000 was received by complainant on January 21, 2000.
Complainant was informed that she would be charged with eight
hours of absent without leave (AWOL) for January 6, 2000, and
one hour of AWOL for January 13, 2000, and when complainant was
placed on AWOL on January 18, 19, and 20, 2000.
With respect to complainant's claim that she was charged AWOL in January
2000, the AJ noted that complainant was on sick leave restriction, but
admitted during the investigation of this complaint that she did not
follow the restrictions. Rather, she was away from her desk for extended
periods of time when she was sitting in the lobby. Complainant did not,
the AJ observed, work at her desk because S2 was sitting next to her desk.
S2 therefore properly charged complainant with AWOL for the time that
she was absent or away from her desk without notifying anyone of her
whereabouts and that she did not use the sign in board as instructed.
The AJ found that complainant did not show that she was discriminated
against as alleged.
DFAS-DE-SANB-01-018
Complainant alleged discrimination based on her age, sex, race,
disability, and retaliation when:
1. On February 7, 2001, complainant did not receive an on
the spot award from her supervisor, S4, while her co-workers were
given awards for work performed by her section during September
2000 through October 2000;
2. On February 21, 2001, Organizational Director, M2, denied
her request for reassignment out of the direct supervision of S4;
3. On February 20, 2001, S4 questioned complainant's
telephonic request for leave to attend a funeral;
4. On February 21, 2001, S4 presented complainant with a
memorandum that assigned complainant's work and required her to
report back to S4 on the status of each;
5. On June 19, 2001, and again on July 18, 2001, S4 denied
complainant's request for approved absence from work to conduct
official union business and placed her in an AWOL status;4
6. On July 8, 2001, complainant requested and was not given
her annual performance appraisal rating for the period ending
April 30, 2001; and
7. On July 18, 2001, complainant was required to meet with
agency management officials, who gave her a notice of intent to
terminate her employment with the agency then escorted her from
the facility.
The AJ found that S4 (and S5, who wrote the award justifications
for complainant's co-workers) explained that S4 had problems with
complainant's productivity and that while complainant helped by working
weekends for a specific project, she did not contribute to the project
as the others had. Also, the AJ noted, that complainant was not the only
employee on the project who did not receive a cash award. The AJ assumed
for argument's sake that complainant had established a prima facie case
of discrimination on the stated bases. However, the agency provided
legitimate, non-discriminatory reasons for not giving her an award.
Complainant was not as productive as the employees who received the
on-the-spot award. The AJ found no evidence to rebut the agency's
reasons and therefore found no discrimination.
With respect to claim (2), the AJ considered the evidence presented
that the agency had granted requests for reassignment to 21 employees,
including many employees in complainant's protected age, sex and racial
groups. The AJ also noted that M2, one of the officials responsible
for denying complainant's request for reassignment out of S4's section,
was unaware of complainant's disabilities and accommodations. The AJ
credited the statement of M1 who related that complainant requested and
was allowed to move many times and that she had a pattern of working
with a supervisor for a short time, and then would request to move when
she was no longer happy. M1 determined that the agency could not keep
moving complainant around. The AJ found that the agency's explanations
were not shown to be pretext or unworthy of belief. Accordingly, the
AJ found that complainant had not shown that discrimination occurred as
alleged in claim (2).
With respect to claim (3), the AJ found that complainant was ultimately
granted leave to attend a funeral on February 20, 2001, and the
AJ dismissed claim (3) for failure to state a claim, finding that
complainant was not aggrieved by S4's questioning her leave request.
29 C.F.R. � 1614.107(a)(1).
Regarding claim (4), the AJ found that S4 had legitimate reasons,
specifically, to address and correct complainant lack of productivity,
for issuing complainant a memorandum regarding her work assignments.
Again, the AJ found that complainant could not identify any other
employees, with low productivity, who were treated any differently.
The AJ found no discrimination occurred as alleged.
In claim (5), the AJ found that complainant's leave requests for both
days were denied based on the agency's restricted leave and mandatory
overtime policy, of which complainant was aware. Complainant identified
no other employees, not in her protected groups, who were granted leave
for similar reasons (official union business) during the time the policy
was in effect. The AJ found that complainant did not show the agency's
reasons were pretext and accordingly, no discrimination occurred.
Regarding claim (6), the AJ found that the less than one month delay
between the times that complainant asked for her performance appraisal
and the time she received it, did not render her aggrieved. The AJ
therefore dismissed claim (6) for failure to state a claim. 29 C.F.R. �
1614.107(a)(1).
In claim (7), the AJ credited the agency's reasons for requesting the
presence of security personnel at the time complainant was notified that
the agency intended to terminate her employment and for escorting her
from the premises. Specifically, complainant's supervisor, S4 did not
know what to expect when complainant received the notice of proposed
removal and the agency desired to obtain complainant's parking decal
from her vehicle (to control complainant's ability to enter and exit
the facility) before she departed. Accordingly, S4 and another agency
official requested the assistance of a security guard. The AJ found
that complainant could not identify any employees, not in her protected
groups, who were not also escorted out of the facility under similar
circumstances. The AJ also noted that complainant's supervisors (S4
and S5) were not involved in complainant's prior complaints and that
complainant did not show that reprisal motivated the agency's actions.
The AJ found no discrimination occurred as alleged in agency case number
DFAS-DE-SANB-01-018.
DFAS-DE-SANB-01-028
Complainant alleged that she was harassed or discriminated
against because of her age, sex, race, disability, and
reprisal, when she was denied unemployment benefits as a
direct result of the Personnel Management Specialist at the San
Bernardino Field Office, (M3), advising the State of California
Employment Development Department official on July 18, 2001,
that complainant's employment at the San Bernardino Field Site
was not terminated.
The AJ dismissed agency case number DFAS-DE-SANB-01-028, because
complainant was still on the agency's payroll on July 18, 2001.
Complainant's termination had been proposed, but was not yet effective.
The AJ found no discrimination because complainant was not aggrieved.
DFAS-DE-SANB-02-001
Complainant alleged discrimination on the bases of age, sex,
race, mental disability, and reprisal, in that on August 20,
2001, she received written correspondence from the Merit Systems
Protection Board (MSPB) advising her that the agency's legal
counsel had pretended to have little knowledge of her complaints
of discrimination.
The AJ observed that the claim in this complaint had been decided by
the Office of Federal Operations, in EEOC Appeal No. 01A21914.5
DFAS-DE-SANB-02-009
Complainant alleged discrimination based on age, sex, reprisal,
disability, and race, through a continuous pattern of harassment
and intimidation when:
1. Complainant was escorted from the DFAS facility on July
18, 2001; and
2. Complainant's supervisor, S4, advised creditors in the
period of July through December of 2001, that complainant was
no longer employed at the agency's San Bernardino Facility.
Complainant's harassment claim, the AJ found, included an incident already
stated in agency case number DFAS-DE-SANB-01-018 where complainant
claimed discrimination in connection with her escort by security from
the facility on July 18, 2001. With respect to the second incident
(claim (2)), the AJ found no evidence to support complainant's version of
the facts. On the contrary, S4 stated that she had not been contacted
by any outside creditors and a witness stated that when an apartment
manager contacted the agency, the manager was told that complainant was
still on the payroll. Accordingly, the AJ found that complainant did
not present sufficient evidence that she was subjected to harassment as
alleged on any basis.
DFAS-DE-16-SANB-02-010
Complainant alleges that she was harassed, caused ongoing
stress and duress and discriminated against based on her age,
sex, reprisal, race, and disability, when upon complainant's
termination on January 18, 2002, she did not receive a lump
sum payment for annual leave, for credit hours, and her 2002
pay raise, and that the agency did not terminate complainant's
charity deduction in 2001, and the agency attempted to prevent
complainant from received unemployment benefits.
Regarding complainant's receipt of payments of her salary, annual leave
and other benefits after her termination, the AJ found that the evidence
showed that agency followed its own policy and that complainant was
paid in accordance with that policy, without regard to her race, sex,
age, disability or reprisal. With respect to unemployment benefits,
the AJ found that the payment of unemployment benefits was beyond the
control of the agency. The AJ therefore found that discrimination did
not occur as alleged in agency case number DFAS-DE-16-SANB-02-010.
DFAS-DE-SANB-02-011
Complainant alleged discrimination based on her age, race,
sex, reprisal, disability, and harassment, in January 2002,
complainant's complaint which bears DFAS-DE-SANB-02-001, was
allegedly improperly dismissed by the agency EEO Director.
This complaint, the AJ found, was decided by a previous decision,
specifically, EEOC Appeal No. 01A21914.
DFAS-DE-13-SANB-02-013
Complainant alleged harassment on the basis of age, race, sex,
reprisal, mental disability, when:
1. Complainant received an SF-50 as part of a MSPB case
file of February 23, 2002, for a personnel action approximately
two years earlier;
2. Complainant was not provided an SF-50 for termination
on January 18, 2002;
3. S4 contacted the California State University to request
information regarding her, without her knowledge, and
4. The previous director of DFAS, San Bernardino, M4, issued
a letter to the facility's security firm singling complainant
out and denied her the same right as others.
With respect to incident (1), the AJ found that complainant was not
harmed by receiving an SF-50 from two years earlier, as part of the
evidence included with her Merit Systems Protection Board appeal.
The AJ also found that employees who receive a notice of termination
do not generally receive an SF-50 at the time they are separated from
service and so complainant could not show how she was treated differently
than any other employee under similar circumstances. With respect to
incident (3) of complainant's harassment claim, the AJ found that S4
had properly contacted the school where complainant claimed to have
been enrolled for purposes of determining whether complainant should be
excused from mandatory overtime. Regarding complainant's claim that
she was singled out by M4 when he issued a letter to the security firm,
the AJ noted that complainant failed to identify any other employees who
had behaved as she had, specifically, made repeated calls to security
to remove her supervisor from her work area. Failing any comparative
employees, the AJ found that complainant did not establish a prima facie
case of discrimination on any basis.
DFAS-DE-SANB-03-025
Complainant alleged discrimination on the bases of age, sex,
race, reprisal and disability, when tax withholding information
on her W-2 form for wages received from DFAS San Bernardino for
tax year 2002, was not accurate and in January 2003, the agency
(DFAS Civilian Pay in Pensacola, Florida) denied her request to
provide her with a corrected W-2 form.
With respect to complainant's claim regarding the preparation of her
tax forms (W-2), the AJ observed that agency officials responsible for
preparation of complainant's tax forms were located in Florida and did
not know complainant's race, age, her prior EEO activity, or that she had
any disabilities. They were aware that she was female, the AJ found,
because complainant contacted them by telephone. However, complainant
did not show, the AJ found, that if there were mistakes on her W-2 forms,
that the mistakes were made or not corrected, because she was female.
The AJ found that complainant did not show that discrimination occurred
with respect to the preparation of her tax forms for wages received for
tax year 2002.
Complainant's overall claim of harassment
The AJ considered complainant's overall claim of harassment, taking
into consideration the series of incidents that occurred over time,
including the discrete incidents as well as the other events complainant
described as discriminatory. The AJ noted that complainant's complaints
identified different supervisors and management officials and that
even where one supervisor was responsible for multiple events, taken
together, complainant did not describe events that rose to the level
of harassment.
Accordingly, the AJ found that complainant did not show that
discrimination on any basis occurred with respect to any of her 16
complaints or her overall claim of harassment. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
As a preliminary matter, we note that complainant has not appealed
any ruling made by the AJ or the agency regarding any claims that were
dismissed from any of her complaints prior to the hearing in February
2005. Accordingly, we confine our decision to the claims addressed in
the AJ's decision and the agency's final order.
In the instant case, we find that substantial evidence supports
the AJ's decision in all respects.6 With respect to agency case
DFAS-DE-SANB-98-040, we find that substantial evidence supports the AJ's
finding regarding complainant's request for accommodation of her carpel
tunnel/tendonitis and DeQuarvain's syndrome. We find that the agency
engaged in the interactive process and that complainant was ultimately
accommodated. We concur with the AJ that complainant's decision not
to communicate with MS1 perpetuated the delay in procurement of the
necessary modifications to complainant's work station.
We have considered complainant's claims individually and as an overall
claim of harassment. We find that the record confirms the AJ's finding
that complainant was eventually unhappy with each identified supervisor
(S2, S3, and S4) shortly after she began working for them and find that
the supervisors provided non-discriminatory reasons, for taking the
actions they took. We find that the record supports the conclusion that
the agency's legitimate, non-discriminatory reasons for its actions were
not shown to be pretext in any of complainant's complaints.
CONCLUSION
We AFFIRM the agency's final decision finding no discrimination.
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
February 25, 2009
__________________
Date
1 Complainant's 16 complaints each allege one or more bases of
discrimination as indicated.
2 The agency consolidated some of complainant's complaints for processing.
For instance, by letter dated May 2, 2000, complaints DFAS-DE-SANB-99-029,
DFAS-DE-SANB-00-007, DFAS-DE-SANB-00-016, and DFAS-PSO-SB-99-008 were
consolidated for processing. The AJ ultimately ordered complainant's
sixteen complaints consolidated and heard on consecutive days in February
2005.
3 The AJ dismissed complaint number DFAS-DE-SANB-99-008, and additionally,
found no discrimination occurred, assuming for the sake of argument
only, that complainant had shown some adverse action occurred when the
memorandum was placed in her official personnel file.
4 The AJ corrected the framing of this claim to reflect the dates at issue
as revealed by complainant during the investigation of this complaint.
5 In Desiree Brown v. Department of Defense, EEOC Appeal No. 01A21914
(June 7, 2002), the Commission found that the purported actions of the
agency legal counsel in the context of actions involving the U.S. Office
of Special Counsel, Department of Labor, and Congressional inquiries,
do not demonstrate an injury to a term, condition, or privilege of
complainant's employment for which there is any remedial relief through
the EEO process.
6 For the purposes of this decision only, we presume, without deciding,
that complainant is a qualified individual with a disability.
??
??
??
??
2
0120061158
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
16
0120061158