01A15245_r
09-04-2005
Gwendolyn C. Henderson, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Gwendolyn C. Henderson v. Department of the Army
01A15245
September 4, 2005
.
Gwendolyn C. Henderson,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A15245
Agency No. BPAQF09912J0150
Hearing No. 120-A1-4025X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 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
order.
The record reveals that during the relevant time period, complainant
was initially employed as a Social Service Representative, GS-08,
at the agency's Fort Lee, Virginia facility. Pursuant to a planned
reduction-in-force (RIF), the agency notified complainant that her
position would be abolished effective August 1997. However, in a letter
dated July 30, 1997, the agency notified complainant that the planned RIF
was cancelled. In September 1998, the agency detailed complainant to a
temporary GS-06 position with GS-08 pay and grade retention in the Safety
Office. In November 18, 1998, the agency notified complainant that her
former GS-08 position was abolished as part of an agency reorganization.
Complainant was then designated an �excess employee� and efforts were made
to place her in a permanent position. In August 1999, the agency offered
and complainant accepted a permanent position in the Safety Office as
an Administrative Support Assistant, GS-06, but she retained GS-08 pay.
The record also reveals that in Fiscal Year 1998, complainant received
a performance rating from her supervisor that made her eligible for
an award. Complainant did not receive the award until December 1999,
although her co-workers received their awards earlier.
The record reveals that complainant filed a formal EEO complaint on
November 19, 1999. In her complaint, complainant alleged that the agency
subjected her to discrimination when:
The agency failed to place her into a vacant Army Emergency Relief
Officer position;
The agency failed to give her the opportunity to be placed into the
position of Casualty Assistance Officer in the AG Directorate;
The agency failed to give her a monetary award at the same time as other
Army Community Service (ACS) employees who were rated Exceptional on
their fiscal year 1998 performance appraisal;
A newspaper article printed in the Fort Lee Traveller by the agency
sought to discredit complainant's twelves years of service with the
agency;
The agency scheduled a Reduction in Force (RIF), which was later
cancelled. The agency nonetheless detailed complainant out of her
directorate based upon the proposed abolishment of her civil service
position; and
At the end of her tenure with the agency, the agency failed to consider
her for a certificate or any other form of recognition after twelve
years of service.
In a letter dated February 9, 2000, the agency notified complainant
of its dismissal of claims (2), (4), and (5). Specifically, the agency
determined that none of these matters were timely brought to the attention
of an EEO Counselor and were not like or related to matters timely brought
to the attention of an EEO Counselor. The letter apprized complainant
that since this was a partial dismissal of her formal complaint, she
did not have immediate appeal rights, but would have such rights after
the issuance of the agency's final action.
At the conclusion of the investigation of the remaining claims,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). During a February
21, 2001 prehearing conference, the issues accepted for hearing were
whether complainant was subjected to discrimination on the bases of race
(African-American), color (medium brown complexion), age (over 40 years
old), and in reprisal for prior EEO activity when in 1998, the agency
denied her a monetary award for Fiscal Year 1998 and failed to afford her
the opportunity to be placed into a vacant Army Emergency Relief Officer
position subsequent to her being detailed out of her organization.
Complainant argued that the three claims dismissed by the agency in
February 2000 should also be heard by the AJ.
Upon the agency's motion, the AJ issued a decision without a hearing.
The AJ found that the agency properly dismissed these claims as matters
that were not timely brought to the attention of an EEO counselor
and not like or related to the other counseled issues. The AJ also
dismissed claim (5) as untimely counseled, but determined that it could
be considered background evidence.
With respect to the issue of the Army Emergency Relief Officer position,
the AJ concluded that complainant failed to establish a prima facie case
of discrimination because she did not demonstrate that she was harmed
by the agency's failure to offer her the Army Emergency Relief Officer
position. The AJ also determined that complainant failed to demonstrate
that her placement in the Administrative Support Assistant position in
the Safety Office was less favorable than the manner in which many other
agency employees were impacted by the reorganization. The AJ further
determined that the agency articulated legitimate, nondiscriminatory
reasons for its actions when it stated that nearly one year before the
Army Emergency Relief Officer position became available, complainant was
detailed to the Safety Office. The AJ concluded that during this detail,
the agency took steps to place complainant in a permanent position in
the Safety Office and therefore did not consider complainant for the
Army Emergency Relief Officer position.
With respect to the issue of the monetary award, the AJ concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ found that complainant's monetary award was delayed because of
complainant's transfer to the Safety Office, which led to confusion
regarding which supervisor was responsible for processing the paperwork
for the award. The AJ noted that complainant's supervisor processed
the award once the oversight was brought to her to attention.
Finally, the AJ noted that complainant further charged that she was
denied another monetary or honorary award at the end of her tenure
with the agency's Community Service Branch. The AJ determined that
complainant failed to offer any evidence to support this claim, such as
the identity of any employee outside her protected classes who was treated
more favorably than she with respect to this matter. The AJ further noted
that complainant did not address this matter in her prehearing statement.
Consequently, the AJ, exercising her discretion not to accept this matter,
dismissed this claim.
In a final order dated August 7, 2001, the agency fully implemented the
AJ's decision. On appeal, complainant restates arguments previously
made during the investigation. In response, the agency requests that
we affirm its final order.
As an initial matter, we find that the AJ properly exercised her
discretion when she dismissed claims (2), (4), and (5). The regulation
set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that
an agency shall dismiss a complaint which raises a matter that has not
been brought to the attention of an EEO Counselor, and is not like or
related to a matter on which the complainant has received counseling.
The record reveals that during counseling, complainant only raised the
agency's failure to place her in the Army position and the performance
award matter with the EEO Counselor. Claim (2) involves a non-selection
that we find is not like or related to the counseled claims. Likewise,
we find that claim (4) involves a matter not like or related to the
counseled claims. We further find that the AJ properly exercised her
discretion when she dismissed claim (5) but allowed the facts surrounding
the RIF to be considered background evidence.
Upon review of the matter, we determine that the agency offered
legitimate, nondiscriminatory reasons why complainant was not offered the
Army Emergency Relief Officer position. The agency responded that nearly
a year before the AER position became available, it placed complainant in
a GS-6 detail position with the Safety Office. The agency maintained that
in light of the reorganization, it worked to ensure that complainant's
position with the Safety Office became a permanent position for her,
which it became in August 1999. The agency responded that it did
not consider complainant for the AER position because she was already
slated to assume a comparable permanent position in the Safety Office.
Complainant's only response is that these reasons are pretext because
the selectee was preselected and that "the employee work environment
was buzzing with talk...that the Army Community Service was 'too dark,'
and there were some bad black managers on the installation." However,
these mere assertions, without any supporting documentation or witnesses,
do not rebut the agency's explanation. We find that complainant failed
to present any evidence from which a reasonable fact-finder could find
that the agency's legitimate, nondiscriminatory reasons for not placing
complainant in the position of Army Emergency Relief Officer were pretext
for unlawful discrimination.
With respect to the monetary award, we find that the agency offered
legitimate, non-discriminatory reasons for its action when it responded
that complainant's monetary award was delayed because of complainant's
transfer to the Safety Office, which led to confusion regarding which
supervisor was responsible for processing the paperwork for the award.
Moreover, the record reveals and complainant acknowledges that she
received the monetary award in December 1999. Upon review of the matter,
we find that complainant failed to offer any evidence from which a
reasonable fact-finder could find that the legitimate, non-discriminatory
reason offered by the agency was pretext for unlawful discrimination.
Finally, regarding complainant's claim that she was denied a monetary
or honorary award at the end of her tenure with the Community Service
Branch, we find that complainant failed to present any evidence from
which a reasonable fact-finder could infer that she was subjected to
unlawful discrimination, such as a similarly situated employee that was
denied an award at the end of her/his tenure with the agency.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final order, because the Administrative Judge's issuance of a decision
without a hearing was appropriate, see Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003), and a preponderance of the
record evidence does not establish that discrimination occurred.
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 4, 2005_________________
Date