01987070
06-14-2001
Ramona Estes, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Ramona Estes v. Department of the Army
01987070
June 14, 2001
.
Ramona Estes,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01987070
Agency Nos. BHFRFO9602G0190; BHFRO9609G1180
Hearing Nos. 360-97-8272X; 360-97-8066X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the bases of
national origin (Hispanic), sex (female), age (49), and reprisal for
previous EEO activity when:
(1) on February 20, 1996 she received a counseling statement from
a supervisor;
on January 17 and 18, 1996, she was charged other than Worker's
Compensation leave;
in February 1996, her supervisor reminded her twice that her position
duties would be transferred to other offices;
on February 16, 1996, a supervisor changed her work hours from a
compressed 5/4/9 schedule to an 8 hour per day, 5 day per week schedule;
on July 3, 1996, she was issued a performance counseling memorandum;
on June 21, 1996, a departing soldier was told she would kiss him;
she was assigned clerical duties beginning in January of 1996; and
on July 19, 1996, a security officer wrote a memorandum detailing
complainant's failure to advise the new security manager, and her
supervisor, on how to do his job.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Security Specialist at the agency's
Fort Sam Houston facility, filed a formal EEO complaint with the agency
on April 5, 1996, and October 12, 1996, alleging that the agency had
discriminated against her as referenced above. At the conclusion of
the investigations, complainant received a copy of the investigative
reports and requested a hearing before an EEOC Administrative Judge
(AJ). The complaints were consolidated into one and following a hearing,
the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination based on sex, race, national origin, age and reprisal.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that, with
respect to the counseling statement, there was insufficient evidence to
prove that discriminatory or retaliatory motives motivated her supervisor.
With regard to the denial of continuation of pay, the AJ concluded that
complainant failed to provide the required information, namely medical
documentation, necessary to support her request to receive Worker's
Compensation. The AJ further found that complainant's supervisor was
merely �keeping her informed� when he twice advised her on the transfer
of duties. In reference to the performance counseling memorandum,
the AJ stated that the supervisors' actions were a direct result of
complainant's non-cooperative behavior. The AJ further found that the
remark regarding complainant kissing a departing soldier did not rise
to the level of sexual harassment prohibited by Title VII. In relation
to the assignment of clerical duties, the AJ concluded that the office
where complainant worked required each individual to take on some clerical
tasks, including complainant. Finally, the AJ found that the memorandum
detailing complainant's failure to advise her supervisor on how to handle
a security breach was not motivated by discriminatory animus.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination and/or retaliation. In reaching this conclusion,
the AJ found that in each instance, the agency's proffered reasons
were credible. The AJ further found that complainant had significant
frustrations with the reorganization of the agency and her role within
the agency, and that this frustration, and not discriminatory actions by
the agency, was the root cause of most of complainant's problems at work.
The agency's final decision implemented the AJ's decision. On appeal,
complainant takes exception to the findings of credibility made by the AJ
in her recommended decision, and argues that the AJ erred in evaluating
the record and in determining that pretext had not been demonstrated
by complainant. In response, the agency restates the position it took
in its FAD, and requests that we affirm its final decision.
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 sex, race, age or national
origin. Moreover, we find no reason to second guess the credibility
determinations of the AJ. We therefore discern no basis to disturb the
AJ's decision. Thus, 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 decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 14, 2001
__________________
Date