01A11453
09-16-2002
Frances G. Brown, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Frances G. Brown v. Department of the Navy
01A11453
September 16, 2002
.
Frances G. Brown,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A11453
Agency Nos. DON No. 93-65889-043; DON No. 93-65889-044
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Supervisory Staff Accountant at the agency's Naval Aviation
Depot in Pensacola, Florida. Complainant sought EEO counseling and
subsequently filed formal complaints on August 27, 1993, alleging that
she was discriminated against on the bases of race (African-American),
sex (female), color (black), and reprisal for prior EEO activity when
she was subjected to a pattern of unlawful harassment, including sexual
harassment.
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.<1>
In its FAD, the agency concluded that complainant failed to prove she
was subject to sexual harassment or harassment based on her race, sex,
color, or in retaliation for prior protected activity. On appeal,
complainant contends that the agency misstated and/or misinterpreted
facts. Complainant further alleges that she was subjected to unwarranted
medical exams and treatment, in violation of her constitutional rights.<2>
The agency requests that we affirm its FAD.
After a careful review of the voluminous investigative record, lengthy
FAD, appeal brief and response brief, we find that complainant has
not demonstrated, by a preponderance of the evidence, that she was
subjected to unlawful harassment. Further, regarding her contentions
that she was sexually harassed, we find that complainant has not provided
sufficient evidence to prove these events occurred. We note that an
internal agency investigation into complainant's allegations of sexual
misconduct by agency officials yielded no corroborating information
or evidence. With respect to the issue of being sent for a psychiatric
evaluation and being required to seek additional treatment, the record
indicates that the exam and treatment was job related and consistent
with business necessity.<3> See 29 C.F.R. � 1630.14(c). Accordingly,
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 16, 2002
__________________
Date
1 We note that there is an extensive factual and procedural history
associated with these complaints, including two decisions issued by the
Merit Systems Protection Board and a decision from the United States
District Court for the Northern District of Florida. As the FAD sets
out the facts and the lengthy history in detail, we will not recount
it herein.
2 Allegations of being forced to take medical exams absent business
necessity also constitute alleged violations of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
3 The record indicates that complainant was initially sent for a
fitness-for-duty exam as a result of an episode of questionable behavior
at work. After such exam, the psychiatrist would not medically release
complainant as �fit for duty� without subsequent treatment.