01A00075
12-16-2002
Sandra K. Morrison, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Sandra K. Morrison v. Department of the Army
01A00075
12-16-02
.
Sandra K. Morrison,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A00075
Agency Nos. BUFRFO9506F1300; SAN98AR0266E
Hearing No. 360-99-8459x
DECISION
Complainant timely initiated an appeal from the agency's final order
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Secretary at the agency's Military
Entrance Processing Station at Fort Sam Houston, Texas, filed a formal EEO
complaint on August 21, 1995, alleging that the agency had discriminated
against her on the bases of race (African-American), sex (female),
color (Black), age (D.O.B. Oct. 6, 1950) and retaliation for previously
participating in protected Equal Employment Opportunity activity,
when on March 15, 1995, she was harassed for putting files in a drawer
instead of shredding them; thereafter was accused of insubordination for
refusing to acknowledge receipt of a �counseling� notice regarding her
failure to shred the documents; and when she was suspended for 10 days,
from July 22, 1995 - August 1, 1995.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to show that complainant's race,
color, age or gender motivated the agency's actions.<1> Specifically,
the AJ found that complainant failed to show that the agency's
articulations<2> for its actions were pretextual.<3>
The agency's final order implemented the AJ's decision.
On appeal, complainant did not assert error in any of the AJ's findings of
fact or conclusions of law. Instead, complainant asserted that �...the
true nature of complainant's charge of discrimination is related to
her disability (severe depression) and not related to racial, age or
sex discrimination.�
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.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Complainant failed to show that similarly situated employees not in
complainant's protected classes were treated differently under similar
circumstances, nor did she adduce any evidence from which an inference
of discrimination can reasonably be drawn.<4>
We note that Complainant did not raise a disability claim in the
investigation or before the AJ, but instead, raised it for the first time
on appeal.<5> A complainant may not raise a new basis of discrimination
for the first time on appeal. Torres v. United States Postal Service,
EEOC Appeal No. 01934108 (Jun. 10, 1994); see also Singleton v. Social
Security Administration, EEOC Appeal No. 01984785) (Apr. 13, 2001) at
n. 4, Request to Reconsider Denied, EEOC Request No. 05A10698 (Aug. 8,
2001) (claim must be amended prior to completion of investigation or
at hearing).
We discern no basis to disturb the AJ's decision. Therefore, 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 order.
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
___12-16-02_______________
Date 1 The basis of reprisal was withdrawn prior
to the hearing.
2 Complainant failed to follow instructions to destroy files and was
not harassed when given a counseling memorandum, and complainant's tone,
as set out in the suspension letter, was loud and disrespectful.
3 The AJ carefully examined complainant's supervisors' motives for
discriminating against complainant because of race, age, and sex and
found no evidence of prohibited discrimination.
4 While it is not necessary for complainant to rely strictly
on comparative evidence in order to establish an inference of
discriminatory motivation necessary to support a prima facie case,
O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308, 312-13 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,
EEOC Notice No. 915.002, n.4 (September 18, 1996); Carson v. Bethlehem
Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996), some evidence must exist
from which an inference of discrimination can reasonably be drawn.
5 The investigative record shows that in a 1997 document, complainant
stated that at an undisclosed time, she had a nervous breakdown and
was diagnosed with severe depression. Additionally, a doctor provided
a statement that since September, 1997, complainant was diagnosed with
major depression, recurrent. These statements appear in the record to
support a request for damages arising from the alleged discriminatory
events of March to August, 1995.