01A11957
08-27-2002
Patricia Harrison, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense Agency.
Patricia Harrison v. Department of Defense
01A11957
8/27/02
.
Patricia Harrison,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
Agency.
Appeal No. 01A11957
Agency No. 97-OHA011
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Secretary, GS-318-07, at the agency's Defense Medical
Program Activity, in Falls Church, Virginia. Complainant sought EEO
counseling and subsequently filed a formal complaint on January 16,
1997, alleging that she was discriminated against on the bases of race
(African-American) and disability (stress, depression, irritable bowel
syndrome and panic attacks) when she was detailed to unclassified duties
not to exceed 120 days from November 12, 1996 to March 11, 1997.<2>
The EEO Investigation established that complainant's position and those
of other civilians in her unit were transferred to the agency's Bureau
of Medicine and Surgery in Bethesda, Maryland for a 120 day detail. In
her affidavit, complainant averred that when she was informed of the
detail she told her Immediate Supervisor (IS) that it would cause her
physical and financial hardship. According to complainant, she had a
history of suffering from panic attacks, which would be exacerbated by
her 60 mile commute to her detail. Complainant adds that on November 26,
1996, she incurred an on-the-job injury. Complainant did not return to
the detail subsequent to that date.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision. In its FAD, the
agency concluded that complainant was not a qualified disabled employee
and thus, she did not fall under the protection of the Rehabilitation Act.
With respect to the race claim, the agency held that the record did
not support complainant's claim that she was treated differently than
similarly situated employees. In reaching this ruling, the agency noted
that complainant was the only administrative employee in her unit and
that she compared herself to contractors who were not agency employees.
Accordingly, the agency ruled that complainant failed to establish a
prima facie case of race discrimination.
In addition to the above findings, the agency took cognizance of the
IS's testimony that complainant was detailed during a reorganization
that led to the creation of the Executive Agency. As a result of this
reorganization, which involved the merger of two existing organizations,
the IS stated that many employees were detailed to and from Bethesda,
Maryland. Like the other employees, the IS testified that complainant
was detailed to make her more comfortable and successful with the new
organization. Based on this testimony, the agency concluded that it
articulated legitimate non-discriminatory reasons for challenged action,
which complainant failed to show was pretext.
On appeal, complainant stated that she had medical documents supporting
the claim that she was disabled due to �actions taken against her.�
Complainant also noted that she had a witness willing to speak on
her behalf. The agency made no new arguments on appeal.
Upon review of the entire case file, we find that the agency developed
an impartial and appropriate factual record in accordance with the
Commission's regulations. Accordingly, 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 decision because the preponderance of the
evidence of record 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
8/27/02
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Complainant dropped sex (female) as a basis during the investigation of
her complaint. Similarly, we note that complainant told the Investigator
that she was not treated differently from other employees because of
her disability. See report of investigation (ROI) p. 54 .