Dee Harris, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.

Equal Employment Opportunity CommissionMar 28, 2000
01983340 (E.E.O.C. Mar. 28, 2000)

01983340

03-28-2000

Dee Harris, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.


Dee Harris v. Department of Defense

01983340

March 28, 2000

Dee Harris, )

Complainant, )

) Appeal No. 01983340

v. ) Agency No. DFAS-IN-OOIN-96-009

)

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Finance and Accounting )

Service), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

basis of reprisal (prior EEO activity), in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

Complainant alleges she was discriminated against when she was: (1)

denied the timely processing of her travel vouchers; (2) forced to have

unnecessary training; (3) denied overtime; (4) denied official travel

time to her home in California; and (5) not allowed to use her team

supervisor's computer. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the Commission AFFIRMS

the FAD as CLARIFIED.

The record reveals that during the relevant time, complainant was employed

as a GS-0525-07 Accounting Technician at the agency's Field Assistance

Management Division of the Directorate for Consolidation at the Defense

Finance and Accounting Service's Indianapolis, Indiana, facility.<2>

Complainant alleged that while she was assigned to temporary duty at Fort

Dietrick in Maryland, she was discriminated against by her team supervisor

(TS), the Operations Officer (OO) and the Division Chief in retaliation

for her prior EEO activity and for representing another employee in

an EEO proceeding. Believing she was a victim of discrimination,

complainant sought EEO counseling and, subsequently, filed a formal

complaint on December 21, 1995. At the conclusion of the investigation,

complainant requested that the agency issue a FAD.

The FAD concluded that complainant established a prima facie case

of reprisal when she demonstrated that: (1) she previously engaged in

prior EEO activity; (2) management officials acknowledged that they were

aware of her prior protected activity; (3) she was subjected to adverse

employment actions; and (4) the adverse action followed the protected

activity in such time and manner that an inference of retaliation

could be inferred. The FAD then found that the agency articulated

legitimate, nondiscriminatory reasons for its actions, namely, that: (1)

complainant required the training which was assigned due to performance

problems and outdated experience; (2) she was denied overtime working

on travel vouchers as she had difficulty filling out her own vouchers;

(3) the processing of her travel vouchers was delayed as the OO stated

that the vouchers submitted by complainant contained numerous errors

and thus they were placed in TS's basket for review in accordance with

agency policy; (4) while complainant and the other members of her "Tiger

Team" were on temporary duty at Fort Dietrick in Maryland, agency policy

was that official travel time was approved only to the site of their

Permanent Duty Station (PDS) in Indianapolis or the employee's place

of abode from which they commuted daily to the PDS, while travel time

to an employee's permanent residence was uniformly not approved; and

(5) she was not allowed to use TS's computer due to a conflict between

complainant and another employee whose office is in an area near TS's,

and complainant had no legitimate reason for being in TS's work area

other than to intimidate the other employee. The FAD thus concluded that

complainant did not establish by a preponderance of the evidence that

she was discriminated against due to reprisal. On appeal, complainant

contends that the agency failed to consider a number of her arguments.

The agency requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,

545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation

cases), the Commission agrees with the agency that complainant established

a prima facie case of reprisal. However, the Commission agrees that the

agency articulated legitimate, nondiscriminatory reasons for its actions.

In addition, although not directly addressed by the FAD, we find that

complainant failed to present evidence that more likely than not,

the agency's articulated reasons for its actions were a pretext for

discrimination. In so finding, the Commission notes that complainant

has not presented credible evidence establishing that the agency was

motivated by retaliation in taking the actions at issue. Therefore,

after a careful review of the record and arguments and evidence not

specifically addressed in this decision, we AFFIRM the FAD as CLARIFIED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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 (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:

March 28, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

__________________________

Equal Employment Assistant

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 The record reflects that although complainant's Permanent Duty Station

was in Indianapolis, Indiana, her legal residence remained in California.