Frances G. Brown, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 16, 2002
01A11453 (E.E.O.C. Sep. 16, 2002)

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.