01993758
09-07-2000
Latrese D. Scott-Brown, Complainant, v. William S. Cohen, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.
Latrese D. Scott-Brown v. Department of Defense
01993758
September 7, 2000
Latrese D. Scott-Brown, )
Complainant, )
) Appeal No. 01993758
v. ) Agency No. M-9606
) M-9610
William S. Cohen, ) M-9707
Secretary, ) Hearing No. 120-97-4263X
Department of Defense ) 120-97-4362X
(Defense Contract Audit Agency), ) 120-98-9375X
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission partially AFFIRMS and partially
REVERSES the agency's final decision.
ISSUES PRESENTED
The issues presented herein are whether complainant has established, by
preponderant evidence, that she was discriminated against on the bases
of race (African-American) and reprisal (prior EEO activity) when:
(1) she was charged 125 hours of AWOL for the period of October 13,
1995 to November 3, 1995; (2) on November 8, 1995, her performance
evaluation was modified to �fully successful�; (3) on November 20,
1995, her request for 240 hours of advanced sick leave was denied; (4)
as of November 1, 1995, she had not been placed in the Voluntary Leave
Donation Program (VLDP); (5) she was not allowed to earn credit hours or
work overtime on weekends and during holidays without prior approval;
(6) she was required to make a work schedule and adhere to it; (7)
her Branch Manager complained to her (complainant's) supervisor that
there was a lack of office coverage when complainant was not at work;
(8) on April 1, 1996, she was issued a letter of reprimand; and (9)
on April 8, 1997, she was suspended without pay for three days.
BACKGROUND
Complainant, employed by the agency as a Clerk/Typist (GS-04) at the time
of the alleged discrimination, filed formal complaints on December 27,
1995, June 24, 1996, and May 15, 1997, in which she raised what have been
identified as the issues presented. Issues (1) - (7) were contained in
the first complaint; issue (8) was contained in the second; and issue (9)
was contained in the third.<2> On October 8, 1996, complainant requested
a hearing before an EEOC Administrative Judge (AJ). Subsequently,
the complainant, the agency, and the AJ agreed to combine the first two
complaints for hearing.<3> On January 1, 1998, complainant requested
a hearing regarding her third complaint. By letter dated February 20,
1998, the AJ indicated that he was combining the third complaint with
the first two. The hearing on all three complaints was held on July 22
and 23, 1997.
On January 12, 1999, the AJ issued a finding of discrimination on
the basis of reprisal (not race) regarding issues (3), (4), and (9).
Regarding the remaining issues the AJ found that the complainant was not
subjected to discrimination as alleged.<4> Finally, we note that the
AJ's findings indicated that complainant was not entitled to compensatory
damages.<5> In its final decision, the agency affirmed the AJ's findings,
except the finding of discrimination regarding issue (9). It is from
that decision that complainant appeals.
ANALYSIS AND FINDINGS
All post-hearing factual findings by an AJ will be upheld if supported by
substantial evidence in the record. 64 Fed. Reg 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405(a)). 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 concludes that
the AJ's decision summarized the relevant facts<6> and referenced the
appropriate regulations, policies, and laws. Therefore, we discern no
basis to disturb the AJ's decision. After a careful review of the record,
including complainant's arguments on appeal, the agency's response
thereto, and arguments and evidence not specifically discussed in this
decision, the Commission REVERSES the agency's final decision regarding
issue (9) and REMANDS the matter to the agency to take remedial actions in
accordance with this decision and the ORDER below. The Commission AFFIRMS
the final agency decision regarding the remaining issues, including the
one concerning complainant's entitlement to compensatory damages.
We note that regarding issues (1), (3) - (6), (8), and (9), the AJ found
that complainant could not prevail on her claims of racial discrimination
because she failed to compare herself to similarly situated individuals
not in her protected class, and therefore, did not establish a prima facie
case of discrimination.<7> Comparative evidence, however, is only one
way of establishing a prima facie case, and there are other methods of
making such a showing. See O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice 915.002 (September 18, 1996). In this
case, complainant has offered no evidence, comparative or otherwise,
to establish a prima facie case of racial discrimination regarding the
aforementioned issues.
We also note that, regarding issues (6) and (8), the AJ, when analyzing
complainant's reprisal claim, found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. He did not,
however, analyze whether complainant met her burden of proving that the
agency's articulated reasons were a pretext for discrimination. After
conducting such an analysis, we find that she did not. In attempting to
prove pretext, complainant merely stated that the employees who testified
for the agency regarding these two issues should not be believed. That,
however, is not sufficient to prove that the agency's articulated reasons
were discriminatory.
ORDER (C1199)
The agency is ORDERED to take the following remedial action:
(1) per the AJ's order and the agency's agreement thereto, pay the
complainant for 200 hours of sick leave for hours that she may have
received if she had been allowed to participate in the Voluntary Leave
Donation Program;
(2) remove the three-day suspension that occurred from April 8, 1997 to
April 10, 1997 from complainant's personnel file and compensate her for
the three days;
(3) train all responsible supervisory and management officials at the
Defense Contract Audit Agency's (DCAA) District Branch Office in Landover,
Maryland, regarding reprisal discrimination;
(4) complete all the above actions within ninety (90) calendar days
after this decision becomes final; and
(5) submit a report of compliance, as provided in the statement entitled
�Implementation of the Commission's Decision.� The report shall include
supporting documentation verifying that the remedial action has been
implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its DCAA District Branch Office,
Landover, Maryland, facility copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an
award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
September 7, 2000
______________________ ____________________________
Date Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________ ______________________________
Date Employment Opportunity Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 It should be noted that the first complaint contained two additional
issues; one was remanded for counseling, the other was procedurally
dismissed. Complainant appealed the dismissed allegation to the
Commission and the appeal was dismissed as untimely filed. It should
also be noted that, in addition to the letter of reprimand, the second
complaint contained a claim of verbal and physical abuse. In its
final decision, the agency stated that the AJ ruled that the second
complaint was only about the letter of reprimand. Since this ruling
is not challenged in the complainant's post-hearing brief or on appeal,
that issue will not be addressed in this decision.
3 At this point, the third complaint was not an issue because it had
not been filed.
4 We note the AJ also found that issue (1) was moot and issue (7) failed
to state a claim. Because the AJ, in light of any possible procedural
defects, considered the merits of those two issues, the validity of
those procedural findings will not be addressed herein.
5 The AJ found that complainant presented insufficient proof of
compensatory damages.
6 For that reason, we decline to restate the facts in this decision.
7 The AJ also made this same finding regarding issue (2). But because he
analyzed the agency's legitimate, nondiscriminatory reason with respect to
this issue and found that the complainant did not prove that the reason
was a pretext for discrimination, his finding that she failed to prove
a prima facie case is irrelevant.