01990146
04-11-2000
Brenda Robertson, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Brenda Robertson v. Department of Defense
01990146
April 11, 2000
Brenda Robertson, )
Complainant, )
) Appeal No. 01990146
v. ) Agency No. 96-157
)
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
____________________________________)
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, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that she was discriminated against on the bases of
race (Black) and in reprisal (prior protected activity) when she was
suspended without pay from July 17-19, 1996 and from September 10-14,
1996.
The record reveals that during the relevant time, complainant was employed
as a Detective Supervisor at the agency's Panama Consolidated Exchange in
the Republic of Panama. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on August 31, 1996. 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. Complainant requested, then withdrew her request for a hearing.
Accordingly, the agency issued a FAD on the basis of the investigation.
Complainant now appeals the FAD, which found no discrimination.
BACKGROUND
On June 13, 1996, management directed complainant to attend a mandatory
meeting on June 14, 1996 with her immediate supervisor (RMO1: White),
her second level supervisor (RMO2: Black Hispanic), and her third level
supervisor (RMO3: Hispanic). Hours before the meeting, complainant sent
a message to RMO3 indicating her intent to file an EEO complaint and
further indicating that she would not attend the meeting without her
legal representative. The record suggests that complainant's legal
representative was unavailable for the meeting. After receiving
complainant's message, RMO3 indicated that he called complainant and
told her that her attendance at the meeting was mandatory and that she
had ten minutes to get there. Complainant responded by saying that she
would not attend the meeting, as her legal representative was unavailable.
RMO3 reportedly informed complainant that her insubordination would lead
to disciplinary action. The record indicates that complainant eventually
went to RMO3's office, but was told by RMO3's secretary that the meeting
ended prior to her arrival. Complainant alleges that she was retaliated
against when RMO issued complainant a three (3) day suspension on July
17-19, 1996 for her failure to attend the meeting.
Complaint also alleged that she was discriminated against when she was
found absent without leave (AWOL) on July 16, 1996 and when she received
a five (5) day suspension for being AWOL, September 10-14. Complainant
indicates that she worked the preceding weekend (July 13 and 14), on
her days off, to train a new Exchange Detective. While she did not get
supervisory approval to take leave that day (July 16, 1996), complainant
indicates that she earned the leave by working on her weekend off.
ISSUES PRESENTED
The issues presented herein are whether complainant has established that
she was discriminated against because of her race (Black) and subjected
to reprisal for participating in protected EEO activity, when she was
suspended without pay for the periods of July 17-19, 1996 and September
10-14, 1996.
ANALYSIS AND FINDINGS
Complainant must initially 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). See Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying
McDonnell Douglas to reprisal cases). 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). Where the agency articulates legitimate and
nondiscriminatory reasons for its actions, we can dispense with the prima
facie inquiry and proceed to the ultimate stage of the analysis, i.e.,
whether the complainant has proven by preponderant evidence that the
agency's explanation was a pretext for actions motivated by prohibited
discriminatory animus. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); 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).
We find that the agency has established legitimate nondiscriminatory
reasons for suspending complainant, namely, insubordination and AWOL.
We also find that complainant failed to prove by preponderant evidence
that the agency's reasons for its actions were pretext for discrimination
or retaliation.
Specifically, with regard to complainant's allegation of retaliation,
we find that complainant was disciplined after she indicated to RMO3 that
she intended to file an EEO complaint. The record clearly reveals that
the subject meeting was scheduled before RMO3 had notice of complainant's
intent to file an EEO complaint. Therefore, we find that the meeting
itself was not called in retaliation for EEO activity. We also find that
notice of the intent to file an EEO complaint did not confer upon the
complainant, the right to avoid mandatory meetings with her supervisors.
Furthermore, the notice of the intent to file an EEO complaint did not
confer upon the complainant immunity from discipline for insubordination.
Complainant therefore failed to establish that she was retaliated against
when she was issued her initial suspension for insubordination. We also
note that complainant failed to establish any discrimination based on
her race relative to this suspension.
As to complainant's suspension for being AWOL on July 16, 1996, we
note that complainant concedes her absence and also concedes that she
did not obtain prior approval for that absence. In recognition of
this fact, complainant proffers no reason for the Commission to find
that her suspension or the length of her suspension was motivated by
discriminatory animus.
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 (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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").
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:
4/11/2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.