0120152311
05-10-2017
Tianna D.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tianna D.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120152311
Agency No. 2009-DMA-065
DECISION
On June 26, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 26, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Specialist at the Agency's facility in Fairfax, Virginia.
On November 17, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when:
1. During the end of August 2009, Complainant was placed in Absent Without Leave (AWOL) slams.
2. On August 3, 4, and 6, 2009, Complainant's request for leave donation was not processed.
3. Complainant was placed on Leave Without Pay from September 2009 to October 2, 2009.2
The Agency assigned the matter to an investigator (Investigator) on August 26, 2013. The Investigator began the investigation in September 2013. The Investigator noted she had difficulties reaching Complainant during the investigation. The Investigator provided a declaration noting her attempts to contact Complainant via telephone and via letter to her address of record. The Investigator was asked by Complainant to fax a copy of the scheduling letter which she did and was received by Complainant. Complainant informed the Investigator that she could not participate in the investigation as she had other matters in other forums. She asserted that she could provide medical documentation to support her request for an extension. Complainant failed to provide the Investigator any documentation. The Investigator contacted Complainant asking for the documentation. However, Complainant indicated that she was on the phone with the doctor and would contact the Investigator back. But Complainant did not return the Investigator's call. On November 7, 2013, the Investigator tried to speak with Complainant on the phone but was told that Complainant no longer lived at the phone number. Complainant called back from the same number asking for the Investigator to fax her credentials and the letter appointing the Investigator to the matter. The next day, the Investigator attempted to fax the documents. However, the Investigator stated that the number did not work on numerous occasions. She called Complainant again but was told by her, "I don't want to hear about this anymore." As such, Complainant indicated that she did not want to participate in the Agency's investigation. The Investigator contacted the Agency's management officials and concluded the investigation.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant stated her intent to file a civil action. Based on Complainant's assertion that she sought to pursue the matter in District Court, 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. The Agency found that Complainant failed to establish a prima facie case of discrimination. Further, the Agency held that it provided legitimate, nondiscriminatory reasons for its actions. Finally, the Agency noted that Complainant did not provide any evidence in support of her complaint and, therefore, had not shown that the Agency's reasons were pretext for discrimination.
Complainant appealed stating that she was unable to complete her case because she had other matters before other courts, the Merit Systems Protection Board, and other mortgage matters. Complainant asserted she would like to respond to her complaint but she was unable to find assistance. She asked that the Commission accept her appeal.
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. (Aug. 5, 2015) (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").
Complainant also asserted that she was subjected to disparate treatment based on race, color, disability and in retaliation. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she 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 Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, (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). Complainant failed to cooperate with the Agency's EEO investigation into the matter. On appeal, Complainant provided no evidence or statement regarding the claims raised in the instant complaint. Therefore, we find that Complainant failed to provide any evidence to establish a prima facie case of discrimination based on race, color, disability, and/or prior EEO activity.
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 discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 10, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Agency initially dismissed Complainant's formal complaint. In EEOC Appeal No. 0120101813 (July 11, 2012), the Commission affirmed in part and reversed in part the Agency's dismissal. These claims were remanded back to the Agency for further processing in accordance with 29 C.F.R. � 1614.108.
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