01A15216
10-23-2002
Dianna McKinney, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Dianna McKinney v. Department of Defense
01A15216
October 23, 2002
.
Dianna McKinney,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A15216
Agency No. 98DCMW39002
Hearing No. 360-AO-8230X
DECISION
Complainant timely initiated an appeal from the agency's final order
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, a Sales Store Checker at the agency's
Kingsville Commissary, Naval Air Station, Kingsville, Texas (�facility�),
filed a formal EEO complaint on January 13, 1999, alleging that the
agency had discriminated against her on the bases of national origin
(Hispanic), sex (female), disability (eye condition), and reprisal for
prior EEO activity when, from August 29, 1998, through November 5, 1998,
she was allegedly subjected to a continuous pattern of harassment creating
a hostile work environment. In support of her complaint, complainant
cited 27 separate incidents of alleged harassment by facility management.
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.
The AJ concluded that while complainant established a prima facie
case of retaliation, she failed to establish a prima facie case of
discrimination on the bases of race, national origin or sex. Addressing
complainant's allegation of disability discrimination, the AJ found that
she failed to demonstrate that her eye condition rose to the level of a
disability as defined by the Rehabilitation Act. Specifically, the AJ
found that complainant failed to offer evidence that her eye condition
substantially limited her in the performance of a major life activity,
and thus she failed to establish coverage under the Rehabilitation Act.
Regarding complainant's allegation of retaliation, the AJ found that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
In so finding, the AJ stated that complainant's interpretation of
documents and events is not as credible as the agency's interpretation
of the same documents and events. As an example, the AJ found that
while complainant alleged retaliation when the agency investigated
her workers compensation claim, the facility's workers compensation
investigator found complainant's claim suspicious and investigated it.
After consideration of the evidence, the AJ concluded that complainant
presented insufficient evidence of pretext. The agency's final order
implemented the AJ's decision. On appeal, complainant restates arguments
previously made at the hearing.
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 note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
race, sex or national origin. In so finding, we note that the record
contains no evidence that there were any similarly situated employees
not in complainant's protected groups who were treated differently under
similar circumstances. In addition, the Commission concurs with the AJ's
finding that complainant failed to establish that it was more likely
than not that the agency's articulated reasons for the actions taken
against complainant were more likely than not a pretext for retaliation.
Regarding complainant's allegation of disability discrimination, we
find that even assuming, arguendo, that complainant was an individual
with a disability, complainant has not proffered any documentation that
the agency discriminated against her based on her disability or failed
to accommodate her eye condition. In so finding, we defer to the AJ's
finding that the agency's interpretation of events is more credible than
complainant's interpretation of the same events. See AJ's Decision, at 5.
In addition, while the AJ did not specifically address whether the
agency's actions against complainant constituted hostile work environment
harassment, we find that none of complainant's allegations constituted
harassment. In so finding, we again defer to the AJ's finding that
the agency's interpretation of events alleged by complainant is more
credible than complainant's interpretation of the same events. Id.
We thus discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record 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
October 23, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.