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.