01A14134
10-18-2002
Jennifer L. Kinslow, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Jennifer L. Kinslow v. Department of the Navy
01A14134
October 18, 2002
.
Jennifer L. Kinslow,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A14134
Agency No. DON-00-67854-004
Hearing No. 100-A0-7606X
DECISION
Complainant timely initiated this 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 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.
At all times relevant to the agency actions at issue in her complaint,
complainant was employed as a Procurement Analyst with the Contracts
Directorate at the Marine Corps Systems Command in Quantico, Virginia.
Complainant alleged that she was subjected to unlawful discrimination on
the bases of her race (African-American) and color (Black), and unlawful
retaliation for participation in protected EEO activity, and that she was
harassed and management attempted to constructively discharge her when:
(1) on June 2, 1999, she was placed in a restricted leave status; (2)
on or about September 10, 1999, she was placed in absent without leave
(AWOL) status for the period August 30, 1999, through September 11,
1999; (3) on or about November 19, 1999, she was reported AWOL for
her absence on November 16, 1999, despite providing documentation of
a medically approved disability; (4) on February 23, 2000, she was
issued a one-day suspension for unexcused tardiness; and (5) on or
about January 24, 2000, she learned management officials were using
the Civilian Demonstration Project System to reduce her salary and/or
create a negative personnel record. Complainant also alleged that she
had been subjected to unlawful discrimination and harassment on the
aforementioned bases, as well as her age (date of birth June 22, 1955)
and disability (herniated discs, elbow injury, asthma, depression),
and unlawful retaliation for participation in protected EEO activity,
and that she was harassed and management attempted to constructively
discharge her when it: (6) used the Civilian Demonstration Project System
Appraisal to reduce her assessment; (7) used the Civilian Demonstration
Project System Appraisal to reduce her workload and assignments; and
(8) issued her a Contribution Improvement Plan on March 28, 2000.
At the conclusion of the agency's investigation into her complaint,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The agency filed a
motion with the AJ requesting that a decision be issued without a hearing.
Complainant submitted a brief in opposition to the agency's motion.
The AJ granted the agency's motion, and issued a decision without a
hearing, finding no discrimination.
The AJ first concluded that the issuance of a decision without a hearing
was appropriate in the matter, as there existed no genuine issue as to
any material fact. Turning to the substance of complainant's claims,
the AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, which showed that its actions were the result
of complainant's attendance and tardiness problems, her job performance
problems, and her failure to provide sufficient medical documentation
regarding certain of her absences. The AJ also found that complainant
had failed to prove that the agency's articulated reasons were mere
pretext for unlawful discrimination, noting that she failed to present
any evidence in support of her assertions that her supervisors had
conspired to harass her and force her to resign and that the Civilian
Demonstration Project System was biased and/or manipulated so as to
discriminate against her. The AJ further found that she failed to prove
her harassment and constructive discharge claims, as the complained-of
agency actions were not sufficiently severe or pervasive to support
those claims. The agency's final order implemented the AJ's decision,
and this appeal followed, in which neither complainant nor the agency
presented any new arguments.
After a careful review of the record, the Commission finds that the AJ's
issuance of a decision without a hearing was appropriate, as no genuine
dispute of material fact exists. We find that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. Further, construing the evidence to be most favorable
to complainant, we note that complainant failed to present evidence that
any of the complained-of agency actions were motivated by discriminatory
animus toward complainant's protected classes, or in retaliation for
her protected EEO activity. The agency's final order is 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
October 18, 2002
Date