0120091147
08-17-2011
Gayla M. Burns, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Gayla M. Burns,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091147
Agency No. 070534A00705
DECISION
On November 5, 2008, Complainant filed an appeal from the Agency’s
October 15, 2008, final decision 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. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
employed by a private contractor and assigned to work as a program
analyst/systems engineer at the Agency’s Pacific Missile Range
Facility in Kekaha, Hawaii. On August 18, 2008, Complainant filed an
EEO complaint alleging that the Agency discriminated against her on the
basis of her religion (Irish Catholic) when: (1) on November 17, 2006,
during the course of an investigation into a harassment claim against
Complainant, her executive officer asked her to identify her religion
and state whether her religious beliefs affected her judgment; and (2)
on November 22, 2006, she was removed from her contractor employee duties.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged. On appeal, Complainant reiterates her contention that she was
discriminated against on the basis of her religion and alleges that the
statements on management officials are not worthy of belief.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
To prevail in a disparate treatment claim such as this, a complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that
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). The prima facie inquiry may be
dispensed with in this case, however, since the Agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency’s
explanation is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we find that assuming, arguendo, Complainant established a prima
facie case of religious discrimination, the Agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the record reflects that on November 17, 2006, Complainant’s executive
officer (XO) questioned both Complainant and her Supervisor in response
to an allegation of harassment leveled against Complainant by another
contract employee (CW1) working at Complainant’s facility. Report of
Investigation (R.O.I), Exhibit F-4. Although we find that the record
establishes that Complainant was, in fact, questioned as to her religious
affiliation, we also find that such an inquiry is not, in and of itself,
a violation of Title VII. See EEOC’s Questions and Answers: Religious
Discrimination in the Workplace, Q. 3, 4 (Jan. 31, 2011).
Further, the record shows that following the November 17 interview,
XO concluded that Complainant had, in fact, harassed CW1. Id. As a
result, XO recommended that Complainant be removed from her duties
at the facility. Id. at 4. The record shows that this recommendation
was approved by the Commanding Officer, and on November 22, 2006,
Complainant’s access to the facility was revoked. Id at Exhibit F-2.
Here, we find that Complainant has proffered no persuasive evidence to
show that her removal was motivated by discriminatory animus toward her
religion, or that the Agency’s legitimate, nondiscriminatory reasons
for her removal were pretextual.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the
Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
August 17, 2011
__________________
Date
2
0120091147
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091147