0120072972
01-12-2010
Paula M. Glass, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Paula M. Glass,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120072972
Hearing No. 420-2006-00129X
Agency No. ARREDSTON05NOV12186
DECISION
Complainant filed an appeal from an agency's final action dated May 10,
2007, finding no discrimination with regard to her complaint. In her
complaint, dated January 4, 2006, complainant, a Logistics Clerk,
GS-5, at the agency's Aviation and Missile Command Integrated Material
Management Center, Alabama, alleged discrimination based on race (Black),
sex (female), and in reprisal for prior EEO activity when on November 16,
2005, her supervisor continued his harassment of her by sending her an
offensive/hate electronic mail message, entitled, "If the South ruled
the Country," which had pictures and symbols of the confederate flag
and the Ku Klux Klan. The record indicates that at the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On April 18, 2007, the AJ, after a hearing,
issued a decision finding no discrimination, which was implemented by
the agency in its final action.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that
complainant had established a prima facie case of discrimination,
the agency articulated legitimate, nondiscriminatory reasons for the
alleged incident. Complainant's supervisor stated that he sent the
alleged inappropriate electronic mail message to complainant by accident.
The supervisor indicated that he meant to send it to his wife. When he
realized his mistake, the supervisor promptly apologized to complainant.
Complainant admitted the supervisor did so. Upon complainant's reporting
of this incident, the supervisor's superior investigated the matter.
The AJ noted that as a result of the investigation, the supervisor was
formally disciplined and had a written reprimand placed in his personnel
file for a period of three years.
With regard to complainant's harassment claim, the AJ determined that
the alleged isolated electronic mail message did not establish the
severity of discriminatory conduct to support a claim of harassment.
The AJ further stated that although complainant and the supervisor had
difficulty working with one another, there was no evidence in the record
to show that the sending of the electronic message by the supervisor
was motivated by discrimination. Upon review, the Commission finds that
the AJ's factual findings of no discriminatory intent are supported by
substantial evidence in the record.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
1/12/10
__________________
Date
2
0120072972
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013