01973715
06-08-1999
Kathleen Weidenbacher, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Kathleen Weidenbacher, )
Appellant, )
) Appeal No. 01973715
v. ) Agency No. 93-10-007& 94-04-0029
) HearingNo. 270-94-9161X&
) 270-94-9162X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
)
DECISION
The appellant filed a timely appeal from a final agency decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of reprisal (prior EEO activity)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appellant alleges she was discriminated
against when: (1) she was ordered to stay at home after an altercation
with a supervisor; and (2) she was not selected for the position of Realty
Specialist GS-1170-09,07,05 . The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that the appellant, an former Office Automation
Clerk GS-4 at the agency's Corps of Engineers, New Orleans, Louisiana,
filed a formal EEO complaint with the agency on September 7, 1993 and
on March 18,1994 , alleging that the agency had discriminated against
her as referenced above. At the conclusion of the investigation, the
appellant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). Pursuant to 29 C.F.R. �
1614.109(g), the AJ issued a Recommended Decision after a hearing,
finding no discrimination.
The AJ concluded that the appellant failed to establish a causal
connection between her EEO activity in 1991 and the actions taken against
her after the altercation or in connection with her not being selected
for the realty specialist position. The AJ credited the selection
officials reasons for his selection as the fact that the selectee had
worked in the Realty Division prior to the selection. She also found
that the appellant failed to establish that similarly situated persons
outside of her protected group had been treated more favorably.
The agency's final decision adopted the AJ's recommended decision. The
agency did not submit a statement in support of its position on appeal.
The appellant submitted a statement in support of her appeal but
essentially reiterated her arguments made at the hearing.
ANALYSIS AND CONCLUSIONS
After a careful review of the record, the Commission finds that the
Administrative Judge reached the correct conclusion based on the facts
and the law before her.<1> Although we disagree with some of her factual
findings as explained below, we conclude that her ultimate decision was
correct. In order for the appellant to establish a prima facie case of
reprisal, she must show 1) that she engaged in protected EEO activity;
2) the management official responsible for the action complained of was
aware of or should have been aware of the appellant's EEO activity; 3)she
suffered an adverse action in such a manner or at such a time to establish
a causal connection with her EEO activity. See, Fodale v. Department of
Health and Human Services, Request No. 05960344, (October 16, 1998).
We disagree with the Administrative Judge that the agency's management
officials were not aware of her prior EEO activity. Considering the
entire investigative record, the Personnel Manager admitted in his
statement to the EEO Counselor, that he generally knew of the appellant's
prior "problems". The appellant's first line supervisor with whom she had
the altercation, also told the EEO Counselor that she was aware that the
appellant had a sexual harassment claim pending in her previous office.
Also, contrary to the Administrative Judge's statements, the appellant
was able to show that another employee involved in an altercation with
the same supervisor and who had not engaged in prior EEO activity had
been treated more favorably.
Where the appellant failed in her proof was her inability to refute
the agency's contention that it acted upon the supervisor's report of
violent behavior of a subordinate in deciding to keep her at home until
tensions had cooled. The AJ concluded and we affirm, that the agency's
actions were reasonable in light of the information known to the Personnel
Manager at the time. It was also apparent that the "adverseness" of the
agency's actions was deminimus because the appellant was on scheduled
leave at the time, was not charged with leave and did not lose pay.
There was nothing in the record to establish any further retribution
against the appellant as she returned to work 3 days later and therefore,
we conclude she did not show by a preponderance of the evidence that
the actions taken were in reprisal for previous EEO activity.
On the issue of non-selection, the appellant was unable to establish
that the selecting official responsible for announcing and hiring for
the realty specialist position, was aware of her prior EEO activity
or that his stated reasons were a pretext for discriminatory conduct.
The appellant contended that she was well qualified for the position of
realty specialist but she was unable to show that her qualifications
so exceeded the selectee's that the agency reasons amounted to a
pretext. McDonnell Douglas v. Green, 411 U.S. 792 (1973); See Williams v.
Department of Education, Request No. 05970561 (August 6, 1998), citing
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Therefore, after a careful review of the record, including appellant's
contentions on appeal, and the record of investigation, we AFFIRM the
final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The agency's
investigator declined to interview the appellant's
witnesses and did not compile comparison data
which we find disconcerting in light of the
agency's responsibility to develop an unbiased
record under 29 C.F.R. �1614.108 et. seq.