Carolyn Page, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 30, 2009
0120070145 (E.E.O.C. Mar. 30, 2009)

0120070145

03-30-2009

Carolyn Page, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Carolyn Page,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120070145

Agency No. 040020511180

DECISION

On October 7, 2006, complainant filed an appeal from the agency's

September 6, 2006, 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 the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �

1614.405(a). For the following reasons, the Commission AFFIRMS the

agency's final decision.

At the time of events giving rise to this complaint, complainant worked as

a Transition Program Manager, GS-301-11, with the Naval Support Activity

in New Orleans, Louisiana. On September 14, 2004, complainant filed an

EEO complaint alleging that she was discriminated against and subjected

to a hostile work environment on the bases of race (African-American),

sex (female)1, age (53), and reprisal for prior protected EEO activity

[under Title VII] when:

(1) in April 2004, her workplace was relocated to another building;

(2) on May 13, 2004, she was not allowed to relocate her file cabinet

of resource material to her new work location;

(3) on or about April 29, 2004, her subordinate employees were

removed from her supervision;

(4) she was either denied leave or received an untimely response to

her request for leave to be taken August 2 - 6, 2004;

(5) she was denied an optional work schedule, while other employees

were permitted optional work schedules;

(6) prior to ultimate approval, her leave requests were routinely

disapproved; and

(7) her supervisor verbally communicated with her in an abrupt,

discourteous, and degrading manner.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b) concluding that complainant failed to prove that she was

subjected to discrimination as alleged.

The FAD initially found that by letter dated May 16, 2006, the agency had

dismissed her claim wherein she alleged that because of discrimination and

retaliation, she was forced to accept an early retirement. This claim was

dismissed for failure to comply with applicable time limits because the

effective date of complainant's retirement was October 1, 2004, however,

complainant indicated to the agency on March 11, 2005, that she would

pursue her complaint with the Merit Systems Protection Board, failed to

do so, and then raised the issue with the agency again on June 11, 2005.

The FAD noted that even March 11, 2005 was well beyond the 45-day time

limit for seeking EEO counseling (or seeking to amend her complaint).

The FAD further noted that the agency also dismissed complainant's claim

that because of disability discrimination, she was denied reasonable

accommodations. This claim was dismissed because complainant failed to

elaborate on that claim by identifying the medical condition and the

type of accommodation needed. The FAD affirmed the dismissal of both

claims. The FAD further addressed management's explanation for each

alleged incident of harassment, and concluded that the harassment was

not frequent, severe, physically threatening, or humiliating enough to

establish a hostile work environment. The FAD found no discrimination.

Complainant has submitted several documents with this appeal, but she

did not submit a timely supporting brief.2 In response to the appeal,

the agency first notes that complainant's brief in support of appeal was

not timely filed. The agency further asserts that the alleged harassment

is not sufficiently severe or pervasive as to be unlawful. Further,

the agency argues that complainant offers no evidence that she timely

raised constructive discharge, and notes that complainant is aware of the

timeframes because she has previously participated in the EEO process.

Finally, the agency contends that complainant has provided no persuasive

evidence of a discriminatory motive.

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 EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").

Initially, we find that the agency properly dismissed complainant's

"reasonable accommodation" and constructive discharge claims for the

reasons discussed above. With regard to complainant's harassment claim,

based on the standards set forth in Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), in order to prevail on a claim of harassment,

complainant must prove that: (1) she was subjected to harassment that

was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile environment; and (2) the

harassment was based on her membership in a protected class. See EEOC

Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris

v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). The evidence in the record

is insufficient to support a finding that management's actions towards

complainant were based on her membership in a protected group. See EEOC

Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris

v. Forklift Systems, Inc. at 3, 6. In addition, the alleged harassment

is not sufficiently severe or pervasive as to be considered unlawful.

To the extent we assume, arguendo, that the alleged incidents constitute

adverse employment actions and were timely raised before an EEO counselor,

we apply a disparate treatment analysis to each of them. The allocation

of burdens and order of presentation of proof in a Title VII or ADEA case

alleging disparate treatment discrimination is a three step procedure:

complainant has the initial burden of proving, by a preponderance of the

evidence, a prima facie case of discrimination; the burden then shifts to

the employer to articulate some legitimate, nondiscriminatory reason for

its challenged action; and complainant must then prove, by a preponderance

of the evidence, that the legitimate reason offered by the employer was

not its true reason, but was a pretext for discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Assuming complainant can

establish a prima facie case of discrimination on the alleged bases, the

agency has articulated legitimate, nondiscriminatory reasons for each

of its actions. Complainant has not established that the articulated

reasons are more likely than not, pretext for discriminatory animus.

We note that we do not have the benefit of an AJ's findings after a

hearing and therefore, we can only evaluate the facts based on the

weight of the evidence presented to us. Based on a thorough review of

the record, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

March 30, 2009

__________________

Date

1 Sex was added as a basis during the investigation of the complaint.

2 Complainant filed her Notice of Appeal on October 12, 2006, and

subsequently submitted a statement dated December 7, 2006, in which she

requests compensatory damages and reiterates her version of the facts

and her arguments. In order to be considered timely according to 29

C.F.R. � 1614.403(d), her statement would have needed to be submitted

within 30 days of when the Notice of Appeal was filed, that is, on or

before November 13, 2006.

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0120070145

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013