Colleen Garland, Complainant,v.Mary E. Peters, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJan 14, 2009
0120083432_rdoc (E.E.O.C. Jan. 14, 2009)

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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