Carol S. Shores, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 2, 1999
01973610 (E.E.O.C. Sep. 2, 1999)

01973610

09-02-1999

Carol S. Shores, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Carol S. Shores, )

Appellant, )

)

v. ) Appeal No. 01973610

) Agency No. (MC) 95-67001-010

Richard J. Danzig, ) Hearing No. 140-96-8090X

Secretary, )

Department of the Navy, )

Agency. )

________________________________)

DECISION

Appellant timely appealed the agency's final decision that it had

not discriminated against her in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the

Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 C.F.R. � 621 et seq. In her complaint, appellant alleged that the

agency discriminated against her on the bases of sex (female) and age

(D.O.B: 9/11/40), when the agency: (1) denied her request to have

staff meetings; (2) refused to exempt her from using critique sheets,

although other trainers were not required to use them, and (3) denied her

administrative support (e.g. typing), and use of a government vehicle

to perform her job duties. This appeal is accepted by the Commission

in accordance with EEOC Order No. 960.001. For the following reasons,

the agency's final decision is AFFIRMED.

Appellant was employed by the agency as an Environmental Control

Specialist, GS-401-09, assigned to the Environmental Management

Department, Environmental Training Branch, Marine Corps Base, Camp Lejeune

(MCBCL), North Carolina. The record reveals that appellant's primary

job duties included coordinating, scheduling and running environmental

training classes on a day-to-day basis. These classes were the primary

source of information regarding Hazardous Waste Handling procedures for

MCBCL personnel, and appellant had total responsibility for providing this

training program. Supervisor #1 was appellant's immediate supervisor from

January 1994 until March 1995, when he left the agency. Supervisor #2

was appellant's second line supervisor from April 1994 until March 1995,

when he became appellant's immediate supervisor.

Following an investigation, appellant requested a hearing before an

Equal Employment Opportunity Commission (EEOC) administrative judge

(AJ). Pursuant to appropriate EEOC regulations, the Regional Attorney (RA)

of the EEOC's Charlotte District Office, issued a Recommended Decision

(RD) without a hearing, finding no discrimination<1>. On February 6,

1997, the agency issued a final decision, adopting the RA's findings of

no discrimination. It is from this decision that appellant now appeals.

The RA concluded that appellant failed to establish a prima facie case of

sex and age discrimination with respect to all three issues. Concerning

the first issue, the RA found that appellant did not demonstrate that she

was subjected to less favorable treatment than her alleged comparator.

Regarding the second and third issues, the RA determined that appellant

did not present any evidence of true comparators, or other evidence

of discrimination.

Assuming that appellant had established a prima facie case of sex and

age discrimination, the RA found that the agency articulated legitimate

nondiscriminatory reasons for its actions. With respect to the first

issue, the RA determined that on all occasions except for one, the

agency granted appellant's requests to meet with supervisors #1 and

#2, respectively. The agency explained that supervisor #1 denied

appellant's request to meet with him on one occasion because he was

leaving the agency. Therefore, he referred appellant to supervisor #2,

who would become appellant's immediate supervisor.

Regarding the second issue, the RA determined that the critique sheets,

which had been part of the training program since the program was

initiated, were necessary to evaluate the total training program.

Furthermore, the agency stated, and appellant agreed, that she was

the only principal instructor, and that the critique sheets also had

a provision for the critique of �guest� instructors. The RA found that

appellant was not held accountable for guest speakers who failed to appear

if she had fulfilled her coordination responsibilities. With respect

to the third issue, the RA determined that appellant was permitted

use of administrative and vehicular support services. Specifically,

appellant could obtain administrative support services if she timely

requested the services, and if the secretaries did not have priority

work assignments. Furthermore, the RA found that appellant could have

obtained a government vehicle if she made a request, and the requested

vehicle had not been assigned for use by another employee. However, the

RA determined that appellant preferred to use her privately owned vehicle.

Regarding all three issues, the RA concluded that appellant failed to

provide any persuasive evidence that the agency's articulated reasons

for its actions were pretext for discrimination.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission finds

that the RA's RD sets forth the relevant facts, and properly analyzes

the appropriate regulations, policies, and laws applicable to appellant's

complaint. We agree with the RA. Therefore, the Commission discerns no

basis to disturb the RA's findings of no discrimination. Accordingly,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the agency's final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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 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:

9/02/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 The Regional Attorney supervises

the Administrative Judges in the Commission's Charlotte District

Office, and has the authority to issue Recommended Decisions.