0120081524
01-08-2009
Christina D. Whitmire,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081524
Hearing No. 451-2007-00149X
Agency No. ARFTSAM06JAN00258
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 3, 2008, final order 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On June 29, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against her
on the bases of race (white), sex (female), disability (fibromyalgia and
major depression)1, age (over 40) and in reprisal for prior EEO activity.
Complainant timely requested a hearing before an EEOC Administrative
Judge (AJ). The record reflects that the accepted claims, as defined
by the AJ, were as follows:
Did the agency discriminate against complainant when:
Issue Number (1):
1. Complainant's position was not graded equivalent to other Department
Chiefs;
2. The budget of complainant's unit was not aligned with other sections
within the Department of Behavioral Medicine;
3. The staffing of complainant's unit was below standards;
4. Complainant was not permitted to manage according to regulations;
5. Complainant was not permitted to make personnel decisions;
6. Complainant was not permitted to return to her job until approximately
six weeks after she reported to duty.
Issue Number (2):
1. Is complainant a qualified individual with a disability for purposes
of the Rehabilitation Act? Did the complainant request reasonable
accommodation and did the agency fail or refuse to reasonable accommodate
complainant?
Issue Number (3):
Did the agency discriminated against or subjected complainant to a hostile
work environment because of her race (white), sex (female), disability
(fibromyalgia and major depression), age (over 40) and in reprisal for
prior EEO activity when:
1. On or about March 28, 2006, complainant's request to have a witness
present during a certain meeting with Colonel (R) was denied and she
was forced to remain in the room against her will;
2. The agency restricted and/or held complainant's medical privileges.
Issue Number (4):
1. If complainant was discriminated or retaliated against as alleged,
what is the appropriate remedy?
Following the hearing held on November 2, 2007, the AJ issued a bench
decision finding no discrimination. The AJ concluded that complainant had
not met her burden of proving that the agency's reasons for its actions
were a pretext to discriminate against her. The agency subsequently
adopted the AJ's decision in its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Having reviewed the record, we find that the evidence substantially
supports the AJ's decision. Even if we assume that complainant
established a prima facie case of race, sex, disability, age, and reprisal
discrimination, we agree with the AJ that the agency provided legally
sufficient legitimate reasons for its actions and that complainant failed
to prove that these reasons were pretext for discrimination.
It is therefore the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final order because the Administrative
Judge's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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, D.C. 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 (Z0408)
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
January 8, 2009______
Date
1 The Commission presumes for purposes of analysis only and without so
finding, that complainant is an individual with a disability.
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0120081524
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120081524