0120083432_rdoc
01-14-2009
Colleen Garland, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Colleen Garland,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120083432
Agency No. 2004-18087-FAA-06
Hearing No. 551-2008-00006X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 25, 2008 final order concerning her equal
employment opportunity (EEO) complaint claiming unlawful 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.
Complainant claimed that she was the victim of unlawful employment
discrimination on the basis of sex (female), when she was sexually
harassed and subjected to a hostile work environment and, on May 7,
2004, was terminated from her position as Cabin Safety Inspector with
the Anchorage Flight Standard District Office.
Following a hearing held on December 18 and 19, 2007, and February 5 and
6, 2008, the AJ issued a 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. With regard to complainant's claim of disparate treatment, the AJ
found that complainant was terminated during her probationary period based
on conduct and trustworthiness issues, and not on the basis of sex.
With regard to complainant's claim of hostile work environment, the AJ
found that complainant failed to produce sufficient evidence to prove
her claim. The AJ acknowledged that while some of the alleged comments
may have been sex-based and inappropriate, they did not rise to the level
of the severity or pervasiveness necessary to establish a discriminatory
hostile work environment. Specifically, the AJ found that complainant's
male supervisor did occasionally poke fun at her about her former career
as a "flight attendant" and joked about her "bringing him coffee."
The AJ also noted that an unknown person modified complainant's training
records to describe her as a "Stewardess Inspector" rather than a "Cabin
Safety Inspector."
With regard to complainant's claim of sexual harassment, the AJ also
found complainant failed to adequately prove her claim. The AJ noted
that during the relevant time, complainant never placed the agency on
notice that her former supervisor was allegedly sexually harassing her
by "staring at her breasts" or asking her personal questions. The AJ
further determined that complainant did not establish a link between any
alleged "lack of reciprocation" with her supervisor, and the agency's
termination grounds. The AJ also noted that complainant exaggerated
her harassment claim as time passed. The AJ noted, for example, that
complainant did not raise a "stalking" allegation until one year after
her termination. Finally, the AJ noted complainant's emails to her
supervisor, which contained "flirting" comments such as "miss me" or
"Hey Boss Man!" which belied her assertion that she was working in and
intimidating and hostile work environment. In sum, the AJ specifically
found that complainant's poor credibility and inconsistencies in her
case presented at hearing hurt her claim.
On June 25, 2008, the agency issued a final order, adopting the AJ's
decision finding no discrimination.
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 sex discrimination, we agree with the
AJ that the agency provided legally sufficient legitimate reasons for its
decision to terminate complainant that she failed to prove were pretext.
Moreover, we conclude that there is substantial evidence to support the
AJ's credibility determinations in this matter, and his decision that
the evidence of record failed to establish a discriminatory hostile work
environment based on sex.
It is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final order because the AJ'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 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 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
January 14, 2009
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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