01a46103
05-02-2005
Susan A. Blake, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Susan A. Blake v. Department of the Air Force
01A46103
May 2, 2005
.
Susan A. Blake,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A46103
Agency No. 8Q1L03008
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. 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 Voucher Examiner at the agency's Andrews Air Force Base,
Maryland facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on March 10, 2003, alleging that she was
discriminated against on the bases of sex (female) and reprisal for
prior EEO activity when:
(1) on November 15, 2002, complainant was subjected to sexual comments
which led to a hostile environment regarding her sexual orientation;
(2) on January 29, 2003, complainant received a Decision to Reprimand;
and
(3) from December 15, 2002, until about February 14, 2003, complainant's
desk telephone was not reconnected following an office reconfiguration.
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 although complainant established
a prima facie case of sex and reprisal discrimination, it effectively
rebutted complainant's assertions by articulating legitimate,
nondiscriminatory reasons for its actions. The agency further concluded
that complainant failed to establish, by a preponderance of the evidence,
that she was discriminated against because of her sex or reprisal. On
appeal, complainant makes no statement, nor submits any brief in support
of appeal. The agency requests that we affirm its FAD.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Although the Commission finds that complainant properly established
a prima facie case of sex and reprisal discrimination, we also find
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. With respect to complainant's contention that she was
subjected to sexual comments which led to a hostile environment regarding
her sexual orientation, we find that the record reflects that all of the
alleged witnesses to the incidents denied hearing anyone make sexual
remarks to or about complainant. (Investigative File, pp. 6, 63, 69,
75-76, 82, 92-93, 98-99, 100c). Further, the complainant herself states
that she was unsure whether the alleged comments were based on her sex,
just that they were inappropriate. (IF, 38).<1>
With respect to complainant's contention that she received a Decision to
Reprimand, we find that the record reflects that complainant publicly
challenged her supervisor's authority. (IF, pp. 54-58, 123-124,
128). Further, we find that the record reflects that a Decision to
Reprimand under these circumstances was appropriate and consistent with
disciplinary action against other employees for the same or similar
offenses. (IF, 93-94).
Finally, with respect to complainant's contention that the telephone on
her desk was not reconnected following an office reconfiguration, we find
that the record reflects that the new furniture setup made reconnection
of complainant's telephone difficult. (IF, 70). Further, we find that the
record reflects that other employees, outside of complainant's protected
classes, had similar problems with their phone connections. (IF, 195).
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 FAD.
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
May 2, 2005
__________________
Date
1Complainant's sexual orientation discrimination claim is not within the
purview of the EEO process. Yost v. United States Postal Service, EEOC
Request No. 05970940 (October 2, 1997). However, we note that Executive
Order 13987 (May 28, 1998) requires federal agencies to establish
an internal redress procedure for complaints of sexual orientation
discrimination by civilian employees. Such complaints are investigated
by the Office of Special Counsel. See 5 U.S.C. � 1214, et seq.