0120062624
09-20-2007
Gwendolyn A. Wiley, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Gwendolyn A. Wiley,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200626241
Agency Nos. 00-68547-002 & 97-68547-002
DECISION
Complainant appeals to the Commission from the agency's decisions,
both dated June 12, 2006, finding no discrimination concerning her two
complaints. Upon completion of the investigation of the complaints,
the agency issued its decisions concluding that it asserted legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
rebut.
Agency No. 00-68547-002:
The record indicates that complainant, a Transportation Assistant,
GS-2102-07, at the agency's Navy Passenger Transportation Office,
Washington, DC (Activity), filed this complaint, dated August 31, 2000,
alleging discrimination based on race (Black), color (dark complexion),
and in reprisal for prior EEO activity when since July 26, 2000, she was
subjected to ongoing harassment by management officials at the Activity,
specifically, on July 26 and 27, and August 1 and 3, 2000.
Complainant indicated that on July 26, 2000, although she arrived
at work at 7:30 am, her immediate supervisor (S1) told her that she
would be charged four minutes Absence Without Leave (AWOL). S1 and
complainant's third level supervisor (S3) indicated that they observed
complainant come in to work at 7:34 am, and at that time, she was under
a Letter of Requirement for having an unsatisfactory attendance record.
Complainant admitted that she did in fact take excessive amount of leave
during the relevant time period at issue.
Complainant also indicated that on July 27, 2000, she was verbally
attacked by S1 about leave usage and her second level supervisor (S2)
required her to submit a leave request when she had arranged to go
to the EEO office. S1, corroborated by S2, denied verbally attacking
complainant as she described. S1 stated that employees were required
to submit a leave request in case something happened when they were out
of the office for an extensive period during duty hours. Complainant
acknowledged that she was not penalized or charged leave to go to the
EEO office during the time at issue.
Complainant alleged that on August 1, 2000, when she asked S1 about a
travel case she was working on, S1, in a hostile tone, said, "Don't you
know how to do it?" and "Haven't you done this before?" S1 stated that
during the relevant time period at issue, she directed complainant to see
S2 about a memo he had written because S1 did not know what it was about.
Complainant then became argumentative. S1 denied expressing any hostility
toward complainant.
Complainant also alleged that on August 3, 2000, she was asked to work
on files and reorganize the same, and S2 told her, in front of S1 and
coworkers, that the files needed to be reorganized, and that complainant
needed to do that so complainant "could shine." When she went to S3 to
complain about this, she told complainant to get out of her office and
not come back uninvited. S1 stated that she was planning to have her
entire office rotate the task of straightening out the files. S1 first
asked complainant to work on the files because complainant did not appear
busy at that time, but complainant told S1 that she would not perform
that task. S2 denied making the remarks described by complainant.
S3 stated that complainant entered her office unannounced while she
was conducting a meeting. S3 told her to leave the office, but denied
telling her not to come back uninvited.
Agency No. 97-68547-002:
In this complaint, dated March 5, 1997, complainant alleged that: (1)
S1, S2, and S3 constantly harassed her almost on a daily basis; (2) S1
denied her requests for leave, but approved leave for all of the other
employees in her office; (3) she was given a Proposed Suspension letter;
and (4) she was given more responsibilities and a greater workload than
the other employees, in an effort to make her fail at her job performance.
It appears that all incidents occurred in 1996.
With regard to claim (1), complainant indicated that S1: belittled her;
required her to perform tasks and later denied any knowledge of doing so;
made snide remarks about her organizational skills and ability to do her
job; watched the clock on her; followed her to the bathroom and prohibited
her from going to the bathroom unless it was her lunch hour; and tracked
her down in other offices where she was conducting business. Complainant
also indicated that S2 and S3 formed illegitimate customer complaints to
deter allegations of discrimination. S1 denied harassing complainant
as she described above or issuing her any Letter of Caution/Reprimand
in 1996. Specifically, S1 stated that complainant, like all employees,
was permitted to go to the restroom when she wanted. S2 corroborating
S1 stated that complainant in fact had numerous customer complaints
against her, to which he had respond and counseled her about that.
S2 maintained that complainant was frequently in the travel office
without her supervisor's knowledge despite the requirement for her to
notify S1 when she was leaving the office.
With regard to claim (2), complainant indicated that coworkers were
granted a grace period of 15 to 30 minutes if they reported late for work,
but she was charged leave if she was even one minute late. Complainant
also indicated that her coworkers were allowed to take an additional
hour for lunch without being charged leave, and during the summer of
1996, she was denied leave based on workload. Complainant alleged that
on May 17 and June 19, 1996, she was denied leave. S1 stated that all
employees, including complainant, took leave during the summer of 1996,
and were all excused if they were less than 15 minutes late reporting
to work. S1 maintained that complainant possessed a negative attitude
that affected her customer service which resulted in her receiving
more customer complaints than other employees. S1 did not recall
denying complainant's leave, but explained that leave was approved on
a first-come, first-served basis and was not based on seniority unless
another employee requested leave at the same time for the same days.
S1 stated that her office was required to be 50% staffed at all times
in order to grant a leave request.
With regard to claim (3), complainant indicated that on September 26,
1996, S2 issued her the Proposed Suspension for two calendar days based
on the charge of disrespectful conduct toward a supervisor between July 31
and August 23, 1996. On October 8, 1996, the Assistant Officer-In-Charge
sustained the charges and suspended complainant for two calendar days,
October 23 through 24, 1996. S1 stated that prior to the issuance of
the Proposed Suspension, she had counseled complainant on many occasions
about her refusal to follow instructions. S2 maintained that she proposed
complainant's suspension based on the complaints management received from
customers concerning complainant's rudeness, curtness, and inability to
communicate. S2 also maintained that complainant's coworkers complained
that they were unable to deal with her because of her bad attitude.
With regard to claim (4), complainant indicated that S1 assigned her
a greater workload than her coworkers. S1 stated that the Detachments
services work was divided equally among the Transportation Assistants
and were rotated among them, including complainant, every few months.
Based on the foregoing, we agree with the agency that, assuming arguendo
that complainant had established a prima facie case of discrimination,
the agency has articulated legitimate, nondiscriminatory reasons for
the alleged incidents in both complaints and complainant failed to show
that they were motivated by discrimination. Complainant has failed,
by a preponderance of the evidence, to rebut the agency's explanations
for its actions.
Accordingly, the agency's decisions finding no discrimination are
AFFIRMED.
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
09/20/2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120062624
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036