0120103237
01-26-2011
Sandra G. Driskell, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Sandra G. Driskell,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120103237
Agency No. 9V1M05454
DECISION
On August 2, 2010, Complainant filed an appeal from the Agency's June 29,
2010, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems
the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Secretary (Office Automation) at the Agency's Commander's Office
facility in Tinker Air Force Base, OK. Complainant entered employment
with the Agency in July 2004, under the auspices of the Special Emphasis
Appointment Project. In July 2005, Complainant was issued a document
from the Lieutenant Colonel raising his concerns with Complainant's
continued errors in completing her timesheet. The matter was considered
a verbal counseling. In September 2005, the Major counseled Complainant
in writing for having 25 errors on her timesheet on September 15, 2005.
In addition, she was counseled for opening correspondence which was
marked for the Commander's "eyes only" and for loafing in a sleeping
position on two occassions. The Major proposed a reprimand for these
incidents. On October 27, 2005, the Major issued his decision to
reprimand Complainant which she received on November 10, 2005.
Complainant contacted the EEO Counselor believing that the Agency's
actions were discriminatory and constituted unlawful harassment.
When the matter could not be resolved informally, Complainant filed
a formal complaint. On November 28, 2005, Complainant filed an EEO
complaint alleging that the Agency subjected her to a hostile work
environment and discrimination on the bases of disability (depression
and breast cancer) and age (66). In support of her claim, Complainant
alleged that the following events occurred:
1. On July 29, 2005, Complainant received a verbal counseling for numerous
errors on her timesheet;
2. On September 26, 2005, Complainant was issued a written counseling
for 25 errors on her timesheet;
3. On September 26, 2005, Complainant was issued a written counseling for
attempting to open an envelope marked for the Commander's eyes only.
4. On November 10, 2005, Complainant was issued a reprimand decision.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed claiming that the Agency's decision was in correct
in finding no discrimination or harassment. Complainant, on appeal,
provided several documents pertaining to her performance and to a case
she had before the Merit Systems Protection Board. The Agency requested
that the Commission affirm it decision finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
Disparate Treatment
We note that Complainant alleged that she was treated different than
other employees based on her age and disability. In a claim of disparate
treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). For complainant to prevail, he must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record,
we note that the Agency provided legitimate, nondiscriminatory reasons
for its verbal counseling, written counseling, and Notice of Reprimand.
The record showed that the Lieutenant Colonel and the Major noted problems
in Complainant's timesheets. Further, the Lieutenant Colonel had another
Agency official meet with Complainant to correct her timesheet errors.
The Major issued Complainant a written counseling on Complainant's
continued timesheet problems. In addition, Complainant was verbally
warned not to open correspondence marked for the Commander's eyes only
when the Major witnessed Complainant trying to open an envelope with
a pair of scissors. Subsequently, Complainant was found in a sleeping
position on two occasions. As a result, the Major issued Complainant
a Notice of Reprimand. Based on our review of the record, the Agency
has provided legitimate, nondiscriminatory reasons for its actions.
We find that Complainant has not established that the Agency's reasons
were pretext for discrimination. As such, we conclude that Complainant
has not shown that the Agency's actions constituted a violation of the
ADEA or the Rehabilitation Act.
Hostile Work Environment
We note that Complainant also alleged the events raised constituted a
hostile work environment. It is well-settled that harassment based
on an individual's disability and/or age is actionable. See Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of harassment under those bases, the complainant must show that:
(1) she is a qualified individual with a disability covered under the
Rehabilitation Act and/or over the age of 40 under the ADEA; (2) she
was subjected to unwelcome conduct; (3) the harassment complained of was
based on her disability and/or age; (4) the harassment had the purpose or
effect of unreasonably interfering with his/her work performance and/or
creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Flowers
v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001);
see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001).
The harasser's conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim's circumstances. Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002
(March 8, 1994). As noted above, we shall assume Complainant is an
individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review
of the record, we find that Complainant has not shown that the alleged
events occurred based on her age and/or disability. Therefore, we
conclude that Complainant has not established that she was subjected to
a hostile work environment based on her age and/or disability.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final decision finding no violation of the ADEA and/or the Rehabilitation
Act.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
January 26, 2011
__________________
Date
2
0120103237
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103237