01A10515
07-16-2002
Karen D. Pleasant, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Defense Finance and Accounting Service), Agency.
Karen D. Pleasant v. Department of Defense
01A10515
July 16, 2002
.
Karen D. Pleasant,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01A10515
Agency No. DFAS-IN-00IN-97-019
Hearing No. 280-98-4282X
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 (Title VII) (42 U.S.C. � 2000e et seq.) and the Rehabilitation Act
(29 U.S.C. � 791 et seq.)<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges she was discriminated against
on the bases of race (African American), disability (cerebral palsy,
allergies) and in retaliation for prior EEO activity when:
(1) she received a letter of warning on February 29, 1996;
her sick leave request was denied on July 15, 1996;
she received a Notice of Negative Determination on August 12, 1996 and
was denied a within grade increase;
she received a Notice of Unacceptable Performance on October 15, 1996;
she was denied a reasonable accommodation when a cleaning crew vacuumed
her work area on December 31, 1996; and
she received a �fully successful� performance rating on January 6, 1997.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, an Accountant, GS-11, at the agency's
St. Louis, Missouri facility, filed a formal EEO complaint with the
agency on January 7, 1997, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race or disability disparate treatment discrimination. Specifically,
the AJ found that complainant failed to demonstrate that similarly
situated employees not in her protected classes were treated differently
under similar circumstances when the alleged employment actions were
carried out. The AJ also concluded that complainant failed to establish a
prima facie case of harassment and that complainant failed to prove that
the agency had failed to provide her with a reasonable accommodation.
The agency's final order implemented the AJ's decision. From that final
order complainant brings the instant appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race or disability.
The AJ's conclusion that the comparators cited by complainant were
not similarly situated to her is supported by substantial evidence.
The only comparators cited by complainant related to her denial of
sick leave claim. Complainant's request to take a week of sick leave
had been denied because she failed to provide medical information to
support her request. Complainant cited as comparators two employees of
races different from hers who were allowed to take sick leave without
providing medical documentation. The evidence showed, however, that in
the case of one comparator only one day of sick leave was requested.
In the case of the other comparator, the evidence showed that she had
cancer, which ultimately was fatal, and was under constant medical care
and that the relevant managers were aware of her condition. Thus the
comparators were not similarly situated in that in the one case far less
leave was requested by the comparator than by complainant and in the
other case the comparator was known to be fatally ill by her supervisors
while complainant was not. Nor is there any other evidence from which an
inference of discriminatory animus could be drawn. Thus complainant did
not establish a prima facie case of disparate treatment discrimination.
Complainant also failed to prove her retaliation claim. The evidence shows
that the supervisor alleged to have engaged in retaliation was not aware
of complainant's prior protected activity. That being so, complainant
could not prevail on her retaliation claim. Richardson v. Department
of Veterans Affairs, EEOC Appeal Nos. 01982915, 01984977 (November 5,
2001)(complainant asserting claim of retaliation must show that �the
alleged discriminating officials were aware of the protected activity.�)
Finally, the AJ's finding that complainant was not denied a reasonable
accommodation in violation of the Rehabilitation Act was supported by
substantial evidence. Complainant contends that the agency failed to
provide a reasonable accommodation to her when it permitted a cleaning
crew to vacuum her office. The evidence shows, however, that the
agency offered to move complainant to another area within the office
when the cleaning crew vacuumed. The AJ correctly concluded that by
making this offer, which complainant refused, the agency had complied
with its obligation to provide a reasonable accommodation.<2>
We discern no basis upon which to disturb the AJ's decision. Therefore,
after a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
order.
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
July 16, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2In reviewing complainant's claim under the Rehabilitation Act, we have
assumed, without deciding, that complainant is an individual with a
disability entitled to the protections of that act.