01991494
09-19-2001
Ethel M. Carter, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Ethel M. Carter v. Defense Logistics Agency
01991494
September 19, 2001
.
Ethel M. Carter,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01991494
Agency No. JH-98-010
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. and Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that
she was discriminated against in the form of on-going harassment on the
bases of her sex, her age (DOB 8/10/45) and in reprisal for previous
EEO activity protected under Title VII when:
on October 8, 1997, complainant's supervisor duties were reduced to
half days;
her subordinates were encouraged to bypass her in the chain of command;
she was repeatedly asked to consider retirement;
in September of 1997, complainant's individual development plan (IDP) was
refused because complainant had requested more than 40 hours of training;
in September 1997, complainant's supervisor (RMO) informed her that
the IDPs for her branch were overdue even though they had been timely
submitted, while her male counterpart in Operations West received no
direction or deadline regarding the IDPs for his branch, despite his
not being timely submitted;
in September and October of 1997, RMO set or changed the release dates
for three of complainant's subordinates without consulting her; and
RMO made critical remarks during complainant's mid-year evaluation
regarding keeping her office door closed too much, not sharing a local
newspaper with her staff, and not answering her phone in a timely manner.
The record reveals that during the relevant time, complainant was
employed as a Supervisory Contract Specialist at the agency's East
Columbus, Ohio, facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on February 6, 1998. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of reprisal and disparate treatment based on reprisal,
sex and age. The agency went on to conclude that legitimate,
non-discriminatory reasons were articulated by RMO, which were not
discredited by complainant. Specifically, RMO stated that supervisor
duties were reduced because the staff complainant supervised was reduced
from fifteen to three. Regarding the chain of command issue, RMO states
that he made himself available after several subordinates complained about
access to complainant. RMO denies ever pressing complainant to retire.
With respect to the IDP, RMO stated that the IDP request was unreasonable.
Regarding release dates, RMO stated that the personnel specialist
in charge of handling the releases had problems getting in touch with
complainant and thus contacted him. Further, RMO states that complainant
asked him to work with the personnel specialist to determine a release
date, and advised the personnel specialist of the same, since it would
directly impact his work load. Finally, RMO states that he felt it was
important to bring to complainant's attention the need to be accessible
to her staff and her customers, by keeping her door open, circulating
the local newspaper and answering the phone promtly. RMO nonetheless
rated complainant �fully successful� for the rating period. The agency
requests that we affirm its FAD.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive to alter the
conditions of the complainant's employment. Wibstad v. United States
Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney
v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). Applying the standards
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing
that age was a determinative factor, in the sense that "but for" age,
complainant would not have been subject to the adverse action at issue);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees
with the agency that complainant failed to rebut the reasons proffered
as being a pretext for discrimination.
In reaching this conclusion, we note that complainant presents no evidence
that the reasons proffered by the agency are pretextual. Further, we
find the reasons legitimate and non-discriminatory. We further find
that under a theory of hostile work environment, complainant fails to
establish a prima facie case of harassment since there is no evidence
that management's action was based on complainant's membership in a
protected class. See Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6. 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 FAD.
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
September 19, 2001
__________________
Date