01A42078
07-19-2004
Cynthia M. Pogue, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Cynthia M. Pogue v. Department of the Navy
01A42078
July 19, 2004
.
Cynthia M. Pogue,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A42078
Agency No. NV08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the agency's
appeal from a final agency decision (FAD) in the above-entitled matter.
Complainant alleged that the agency discriminated against her on the
bases of race (Caucasian) and reprisal for prior EEO activity when
agency management: (1) refused to amend minutes for a meeting indicating
that complainant left the meeting early by either removing reference to
that event, or noting also that an African-American employee came late
to the meeting; (2) wrote a memorandum requesting that complainant be
detailed shortly after she initiated EEO proceedings; and (3) ceased
speaking to complainant, and made disparaging comments to others about
complainant after the EEO proceedings began. For the following reasons,
the Commission AFFIRMS the agency's FAD.
The record reflects that complainant, a Management Specialist in the
agency's Office of Naval Intelligence in Washington, D.C. (�facility�),
was called with her office's other employees to attend an Account
Executives' Meeting on July 23, 2002. Although complainant had informed
her first line supervisor (hereinafter "S1") that she could not remain for
the entire meeting because she had to attend another meeting, S1 approved
a notation in the meeting's minutes indicating that complainant had left
early. Upon learning of the approval, complainant demanded that S1 amend
the minutes either by deleting the notation or inserting another notation
indicating that an African-American employee was ten minutes late for the
meeting. S1 refused to do so, and complainant subsequently initiated EEO
proceedings on July 31, 2002. On the same day, S1 forwarded a memorandum
to complainant's second line supervisor (hereinafter "S2"), recommending
that complainant be reassigned to another position. During the next few
days, complainant alleged that S2 refused to speak to her and averted her
eyes from her in front of other employees, and commented to them that
"a certain person here is personally attacking [S1]." Complainant was
detailed to another division approximately one month later.
Believing she was the victim of discrimination and/or retaliation,
complainant sought EEO counseling and filed an EEO complaint on October
7, 2002. After the agency's investigation, complainant requested a FAD.
In its FAD, the agency found that assuming, arguendo, that complainant
established a prima facie case of race or reprisal discrimination, agency
management demonstrated legitimate, nondiscriminatory reasons for its
actions. The FAD found that S1 articulated legitimate, nondiscriminatory
reasons for not amending the minutes of the meeting held on July 23, 2002,
namely that complainant's early departure was not an issue. Further, the
FAD found that as for drafting the memorandum requesting complainant's
reassignment, S1 requested the reassignment as she had numerous conduct
and behavior problems with complainant. The FAD further noted that S1
stated that she did not know that complainant had filed an EEO complainant
until after she drafted the memorandum. In addition, the FAD found
that S2 stated that her behavior toward complainant did not change after
she filed her EEO complaint, nor did she make any other comments about
complainant. Finally, the FAD found that complainant failed to establish
that the agency's articulated reasons were more likely than not a pretext
for discrimination or retaliation. Complainant has made no contentions
on appeal, nor has the agency responded to complainant's appeal.
After a consideration of the record, we find that complainant has failed
to establish, by a preponderance of the evidence, that the agency's
articulated reasons for its actions were more likely than not a pretext
for retaliation. In so finding, we note that there is no evidence in
the record that S1 referred to complainant's EEO complaint during the
staff meeting addressed by the facility employee, which could only have
taken place on July 31, 2002. In addition, we find no evidence in the
record to contradict S1's statement that she recommended complainant
be reassigned as her disruptive behavior was adversely affecting
other facility employees. The record contains evidence documenting
complainant's behavior, including her speaking loudly, abrasively
and in a disrespectful manner to S1. Investigative File (IF) at 109,
130, 146. S1 further stated that she was forced to write the July 31,
2002 memorandum as complainant's behavior had become �so negative and
abrasive� toward [S1] that she stated keeping memorandums for the record.
S1 stated that in May of 2002, she warned complainant that any future
display of disrespectful behavior would result in disciplinary action.
IF at 88. In June 2002, S1 had a professional facilitator come in to
help her and the other subordinates with their working relationships.
St indicated that complainant refused to attend the meeting.� Id.
S1 stated that she decided to reassign complainant as she was having
an negative impact on the entire facility. Complainant conceded that
she had a contentious relationship with S1. IF at 65. In addition,
we note S1's statement that complainant was reassigned to a Program
Manager position as the reassignment would improve her eligibility for
existing GG-13 Human Resources positions. S1 also conceded that she had
a difficult working relationship with complainant, and assigning her as
a Rotational Program Manager with a new supervisor would facilitate a
closer working relationship between them. IF at 88, 173-174. As such,
we find that complainant has failed to demonstrate that she was reassigned
to the Program Manager position in reprisal for her filing of an EEO
complaint on July 31, 2002.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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
July 19, 2004
__________________
Date