Desiree M. Brown, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionFeb 25, 2009
0120061158 (E.E.O.C. Feb. 25, 2009)

0120061158

02-25-2009

Desiree M. Brown, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


Desiree M. Brown,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Finance & Accounting Service),

Agency.

Appeal No. 0120061158 (formerly 01A61158)

Hearing/Agency Nos. 340-2004-00184X

(DFAS-DE-SANB-03-025)

340-2004-00349X

(DFAS-DE-SANB-99-013)

340-2004-00350X

(DFAS-DE-SANB-99-021)

340-2004-00351X

(DFAS-DE-SANB-01-018)

340-2004-00352X

(DFAS-DE-SANB-99-008)

340-2004-00354X

(DFAS-DE-SANB-99-029)

340-2004-00355X

(DFAS-DE-SANB-00-016)

340-2004-00356X

(DFAS-DE-SANB-00-007)

340-2004-00357X

(DFAS-DE-SANB-02-001)

340-2004-00358X

(DFAS-DE-SANB-02-009)

340-2004-00359X

(DFAS-DE-SANB-02-011)

340-2004-00360X

(DFAS-DE-SANB-02-010)

340-2004-00361X

(DFAS-DE-SANB-02-013)

340-2004-00362X

(DFAS-DE-SANB-01-028)

340-2004-00363X

(DFAS-PSO-SB-99-008)

340-2004-00353X

(DFAS-DE-SANB-98-040)

DECISION

Complainant filed an appeal from the agency's November 8, 2005 final

order concerning her equal employment opportunity (EEO) complaint alleging

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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following

reasons, the Commission AFFIRMS the agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as an Accounting Technician (GS-0525-05/06) at the agency's facility in

San Bernardino, California. Between 1998 and 2003, complainant filed

a series of sixteen EEO complaints alleging that she was discriminated

against on the bases of race (African-American), sex (female), disability

(tendonitis, carpel tunnel syndrome, and major depression), age (over 40),

and reprisal for prior protected EEO activity.1

At the conclusion of the investigations2, complainant was provided with a

copy of each report of investigation and notice of her right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant requested a

hearing for each complaint. The AJ assigned to complainant's cases held

a hearing for complainant's complaints on February 2, 3, and 4, 2005.

Thereafter, the AJ issued her decision on September 14, 2005.

In her decision, the AJ observed that seven witnesses testified at the

time of the hearing. Complainant did not testify. The AJ set forth

the claims of complainant's complaints, and ruled as follows.

DFAS-DE-SANB-98-040

Complainant alleged discrimination, based on her disability

(carpal tunnel tendonitis) and race (African American) when:

1. Beginning on January 23, 1998, management failed to

reasonably accommodate her disability and advised her that her

medical documentation was not sufficient to justify the purchase

of ergonomic equipment.

2. Four months after complainant advised management of her

disability, management increased her work load and counseled her

about her productivity and advised her that if her productivity

did not increase, termination was possible.

The AJ noted that with respect to claim (1), the agency provided

complainant with virtually every accommodation that complainant

requested in connection with her request for supplies and a work

station consistent with her documented disabilities. The AJ noted that

complainant was not cooperative in providing the agency with the medical

documentation it requested to determine if complainant was a qualified

individual with a disability under the definition of Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.

However, the agency did provide complainant with an ergonomic chair and

keyboard to accommodate her functional limitations. The AJ found that

any delays in the processing of complainant's request were insufficient

to show a violation of the Section 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791 et seq.

Regarding claim (2), the AJ found that complainant did not establish a

prima facie case of discrimination based on race or disability because

she did not identify any employees that were treated differently than

she was treated. Accordingly, the AJ found that complainant did not

show that discrimination occurred in this complaint as alleged.

DFAS-PSO-SB-99-008

Complainant alleged harassment based upon her race, sex and

reprisal for a one year period when agency human resource

officials communicated with complainant's health care provider

regarding her medical appointments.

The AJ found that complainant was not aggrieved under any of the

statutes enforced by the Commission when the agency responded to

calls from complainant's health care provider. The AJ noted that the

agency did not initiate the calls and that the human resources employees

routinely redirected calls from health care providers to the appropriate

supervisors. The AJ found that complainant did not show any harm when

the agency simply responded to the calls as described in complainant's

complaint.

DFAS-DE-SANB-99-008

Complainant alleged that she was subjected to a hostile work

environment based upon her race, and reprisal, when on February 2,

1999, MS1 wrote a negative memorandum for record to complainant's

supervisor, S1, and to complainant's branch chief, MS2, which

was placed in her file.

The AJ found that in the memorandum written by MS1, he was critical of

complainant's professionalism and conduct. However, the AJ found that

the agency did not take any action against complainant based on the

memorandum, nor was complainant able to show any other harm. The AJ

found that complainant was not aggrieved by the memorandum and further,

was unable to identify any other employee exhibiting the same conduct in

the work place, not in her protected groups, who was not treated the same.

Accordingly, the AJ found this complaint should be dismissed.3

DFAS-DE-SANB-99-013

Complainant alleged she was harassed based upon her race, and

reprisal, since February of 1998, by management officials T1

and T2, regarding a permanent change of station.

In this complaint, the AJ noted that complainant described her relocation

to San Bernardino, California. The AJ found that some of complainant's

moving expenses were disallowed by the agency for various reasons,

resulting in a debt complainant owed to the agency of $953.56. The AJ

found that complainant communicated with the agency travel expense

officials regarding the fund she had received for relocation and why

some of her claimed expenses were denied. For example, complainant

did not provide receipts for two nights' lodging and accordingly, the

agency did not pay for complainant's lodging for those two nights.

The AJ reasoned that the agency officials who denied complainant's

various disallowed expenses were located in Indianapolis and were

unaware of complainant's race or her EEO activity. The AJ found that

complainant did not establish a prima facie case of race or reprisal

discrimination and therefore found no discrimination with respect to

this complaint. Moreover, the AJ found the agency's explanation for

its handling of complainant's permanent change of station expense to be

a nondiscriminatory explanation for its actions.

DFAS-DE-SANB-99-021

Complainant alleged she was discriminated against based on race,

sex, and reprisal when she was denied annual leave for June 11,

1999, and administrative leave for June 22, 1999, and placed

on absence without leave for not reporting to work on both of

those days.

The AJ found that assuming that complainant had established a prima

facie case of race, sex or reprisal discrimination with respect to her

leave request for June 11, 1999, that the agency articulated reasons

for its actions that complainant was unable to rebut. Specifically,

complainant's coworkers identified by complainant who asked for leave in

advance, stated their reasons for requesting leave and asked for several

hours of leave instead of whole days when their needs only required a

few hours. The AJ considered the testimony of complainant's supervisor,

MS2, who indicated that complainant had an attendance problem at the time

that her coworkers did not have. The AJ observed that complainant did not

communicate her leave requests to her supervisor as did her coworkers.

With respect to June 22, 1999, the AJ noted that previously, complainant

had been allowed to use administrative leave for attending a Department

of Labor hearing. MS2 was later informed that the agency did not have

to provide administrative leave for such hearings and so, her request

for administrative leave on June 22, 1999 was denied. The AJ found the

agency was not motivated by complainant race, sex or reprisal and so,

the AJ found no discrimination occurred in this case as alleged.

DFAS-DE-SANB-99-029

Complainant alleged she was discriminated against based on her

race and sex when:

1. The Principal Deputy Director (M1) refused to answer

complainant's inquiries regarding her leave and earning statements

and her request that her sick leave taken on July 12, 1999, be

changed to administrative leave when complainant left the work

place because the air conditioning was not working properly in

the building;

2. A time keeper (T3) changed complainant's time sheet, made

improper timekeeping entries and refused to answer complainant's

questions regarding her leave and earning statement; and

3. The payroll monitor (T4) did not answer her inquiries

regarding her leave and earnings statement.

4. Complainant was harassed based on her race, sex, and

retaliated against when:

a. S2, after becoming her supervisor in August of 1999,

constantly monitored complainant's leave usage,

breaks, lunch, and work load;

b. S2 delayed complainant's request to move to another location in the

office; and

c. S2 sat directly beside her.

With respect to claim (1), the AJ found that M1 admitted he did not

read many of complainant's electronic mail messages, but that he also

received other messages he also did not open or read. M1 denied refusing

to answer her inquiries saying that she frequently sent messages to

multiple recipients. The AJ found that complainant failed to identify

any similarly situated employees, not in her protected groups, who

received administrative leave when they left work early on July 12,

1999. Regarding claims (2) and (3), the AJ found that no adverse action

resulted from the incidents described. Rather, the AJ found that the

changes made to her time card by T3 resulted in no change in complainant's

time or hours recorded, but changed the codes entered on her time card.

The AJ found that claims (2) and (3) failed to state a claim because

complainant was not harmed by T3's actions.

Regarding claim (4), the AJ found that S2 explained that he monitored

complainant's leave and other aspects of her work because of her record of

leave abuse. Complainant, S2 stated, had a poor attendance record and did

not abide by the agency's leave policy regarding her requests for leave.

The AJ noted that other employees did not abuse the leave policy and

so, they were not monitored as complainant was. S2 also stated that

because he was new to the organization, he chose to sit among his staff

and chose in particular to sit next to complainant's desk. The AJ found

that complainant did not show that S2 was motivated by her race, sex or

reprisal for her prior EEO activity, but by her leave abuse problem.

Further, the AJ found the evidence failed to show that the agency's

decision to deny her request to move away from S2, was motivated by

anything other than her leave abuse problem. Moreover, the AJ found that

complainant suffered no adverse action when her work was redistributed

because she was absent. The AJ found no discrimination occurred.

DFAS-DE-SANB-00-007

Complainant alleged she was discriminated based on race, sex

and reprisal when:

1. Complainant was subjected to a stressful, hostile

and harassing work environment when the following incidents

allegedly occurred: beginning August 25, 1999, and continuing,

her supervisor, S2, singled her and constantly monitored her

behavior but did not monitor complainant's White or Asian

coworkers' behavior;

2. On September 23, 1999, an agency supervisor (S3) demanded

that complainant stop making negative remarks about local

management personnel and provoked a verbal altercation with her;

3. On approximately September 29, 1999, complainant

experienced financial hardship because supervisor, S2, changed

complainant's time and attendance records to reflect that she

were absent without leave (AWOL) for the period of August 29

through September 11, 1999, and for the period of September 12

through September 25, 1999;

4. On October 8, 1999, complainant received a Letter of

Indebtedness because S2 made changes to complainant's official

time and attendance record and this situation created a financial

hardship for complainant and has established a fraudulent debt;

and

5. On October 8, 1999, S3 advised complainant that S3 was

complainant's acting supervisor and repeatedly monitored and

scrutinized complainant's work activities throughout the day.

The AJ found that S2's reasons for singling her out for monitoring, as

discussed in her previous complaint (DFAS-DE-SANB-99-029) was justified

because complainant had an attendance and leave issue that S2 addressed.

Complainant, the AJ noted, did not identify any White or Asian employees

who also had attendance problems, who were treated differently. The AJ

observed that neither party disputed the altercation that occurred between

S3 and complainant. The AJ found that claim (2) failed to state a claim

because S3 did not issue any discipline to complainant and nothing in

the record showed that complainant was harmed by S3's actions. S2,

the AJ found, stated that he changed complainant's time and attendance

records to reflect the time that complainant spent away from her desk,

to show that she was absent without leave (AWOL) and not working (claim

(3)). The AJ found that similar to her other claims, complainant did not

identify any other employees who spent time away from their desks who were

not charged AWOL by S2. The AJ found that with no employees to compare,

complainant's claim that S2 discriminated against her failed. Claim (4),

the AJ observed, resulted from complainant's time and attendance being

changed to reflect the times she was absent without leave, which created

a discrepancy between her regular pay and the hours she actually worked.

The AJ found that complainant did not show the letter of indebtedness

was motivated by discrimination. Rather, the AJ found that the letters

were sent because complainant owed the agency money from when she was

paid when she was not actually working. Lastly, regarding claim (5),

the AJ found that complainant was treated differently by S3 because of her

leave record, not because of her race, sex or reprisal. Accordingly,

the AJ found that complainant did not prove that discrimination occurred

as alleged in agency case number DFAS-DE-SANB-00-007.

DFAS-DE-SANB-00-016

Complainant alleged she was subjected to a hostile work

environment based upon her race, sex, disability (major

depression), and retaliation, when a memorandum for record dated

January 18, 2000 was received by complainant on January 21, 2000.

Complainant was informed that she would be charged with eight

hours of absent without leave (AWOL) for January 6, 2000, and

one hour of AWOL for January 13, 2000, and when complainant was

placed on AWOL on January 18, 19, and 20, 2000.

With respect to complainant's claim that she was charged AWOL in January

2000, the AJ noted that complainant was on sick leave restriction, but

admitted during the investigation of this complaint that she did not

follow the restrictions. Rather, she was away from her desk for extended

periods of time when she was sitting in the lobby. Complainant did not,

the AJ observed, work at her desk because S2 was sitting next to her desk.

S2 therefore properly charged complainant with AWOL for the time that

she was absent or away from her desk without notifying anyone of her

whereabouts and that she did not use the sign in board as instructed.

The AJ found that complainant did not show that she was discriminated

against as alleged.

DFAS-DE-SANB-01-018

Complainant alleged discrimination based on her age, sex, race,

disability, and retaliation when:

1. On February 7, 2001, complainant did not receive an on

the spot award from her supervisor, S4, while her co-workers were

given awards for work performed by her section during September

2000 through October 2000;

2. On February 21, 2001, Organizational Director, M2, denied

her request for reassignment out of the direct supervision of S4;

3. On February 20, 2001, S4 questioned complainant's

telephonic request for leave to attend a funeral;

4. On February 21, 2001, S4 presented complainant with a

memorandum that assigned complainant's work and required her to

report back to S4 on the status of each;

5. On June 19, 2001, and again on July 18, 2001, S4 denied

complainant's request for approved absence from work to conduct

official union business and placed her in an AWOL status;4

6. On July 8, 2001, complainant requested and was not given

her annual performance appraisal rating for the period ending

April 30, 2001; and

7. On July 18, 2001, complainant was required to meet with

agency management officials, who gave her a notice of intent to

terminate her employment with the agency then escorted her from

the facility.

The AJ found that S4 (and S5, who wrote the award justifications

for complainant's co-workers) explained that S4 had problems with

complainant's productivity and that while complainant helped by working

weekends for a specific project, she did not contribute to the project

as the others had. Also, the AJ noted, that complainant was not the only

employee on the project who did not receive a cash award. The AJ assumed

for argument's sake that complainant had established a prima facie case

of discrimination on the stated bases. However, the agency provided

legitimate, non-discriminatory reasons for not giving her an award.

Complainant was not as productive as the employees who received the

on-the-spot award. The AJ found no evidence to rebut the agency's

reasons and therefore found no discrimination.

With respect to claim (2), the AJ considered the evidence presented

that the agency had granted requests for reassignment to 21 employees,

including many employees in complainant's protected age, sex and racial

groups. The AJ also noted that M2, one of the officials responsible

for denying complainant's request for reassignment out of S4's section,

was unaware of complainant's disabilities and accommodations. The AJ

credited the statement of M1 who related that complainant requested and

was allowed to move many times and that she had a pattern of working

with a supervisor for a short time, and then would request to move when

she was no longer happy. M1 determined that the agency could not keep

moving complainant around. The AJ found that the agency's explanations

were not shown to be pretext or unworthy of belief. Accordingly, the

AJ found that complainant had not shown that discrimination occurred as

alleged in claim (2).

With respect to claim (3), the AJ found that complainant was ultimately

granted leave to attend a funeral on February 20, 2001, and the

AJ dismissed claim (3) for failure to state a claim, finding that

complainant was not aggrieved by S4's questioning her leave request.

29 C.F.R. � 1614.107(a)(1).

Regarding claim (4), the AJ found that S4 had legitimate reasons,

specifically, to address and correct complainant lack of productivity,

for issuing complainant a memorandum regarding her work assignments.

Again, the AJ found that complainant could not identify any other

employees, with low productivity, who were treated any differently.

The AJ found no discrimination occurred as alleged.

In claim (5), the AJ found that complainant's leave requests for both

days were denied based on the agency's restricted leave and mandatory

overtime policy, of which complainant was aware. Complainant identified

no other employees, not in her protected groups, who were granted leave

for similar reasons (official union business) during the time the policy

was in effect. The AJ found that complainant did not show the agency's

reasons were pretext and accordingly, no discrimination occurred.

Regarding claim (6), the AJ found that the less than one month delay

between the times that complainant asked for her performance appraisal

and the time she received it, did not render her aggrieved. The AJ

therefore dismissed claim (6) for failure to state a claim. 29 C.F.R. �

1614.107(a)(1).

In claim (7), the AJ credited the agency's reasons for requesting the

presence of security personnel at the time complainant was notified that

the agency intended to terminate her employment and for escorting her

from the premises. Specifically, complainant's supervisor, S4 did not

know what to expect when complainant received the notice of proposed

removal and the agency desired to obtain complainant's parking decal

from her vehicle (to control complainant's ability to enter and exit

the facility) before she departed. Accordingly, S4 and another agency

official requested the assistance of a security guard. The AJ found

that complainant could not identify any employees, not in her protected

groups, who were not also escorted out of the facility under similar

circumstances. The AJ also noted that complainant's supervisors (S4

and S5) were not involved in complainant's prior complaints and that

complainant did not show that reprisal motivated the agency's actions.

The AJ found no discrimination occurred as alleged in agency case number

DFAS-DE-SANB-01-018.

DFAS-DE-SANB-01-028

Complainant alleged that she was harassed or discriminated

against because of her age, sex, race, disability, and

reprisal, when she was denied unemployment benefits as a

direct result of the Personnel Management Specialist at the San

Bernardino Field Office, (M3), advising the State of California

Employment Development Department official on July 18, 2001,

that complainant's employment at the San Bernardino Field Site

was not terminated.

The AJ dismissed agency case number DFAS-DE-SANB-01-028, because

complainant was still on the agency's payroll on July 18, 2001.

Complainant's termination had been proposed, but was not yet effective.

The AJ found no discrimination because complainant was not aggrieved.

DFAS-DE-SANB-02-001

Complainant alleged discrimination on the bases of age, sex,

race, mental disability, and reprisal, in that on August 20,

2001, she received written correspondence from the Merit Systems

Protection Board (MSPB) advising her that the agency's legal

counsel had pretended to have little knowledge of her complaints

of discrimination.

The AJ observed that the claim in this complaint had been decided by

the Office of Federal Operations, in EEOC Appeal No. 01A21914.5

DFAS-DE-SANB-02-009

Complainant alleged discrimination based on age, sex, reprisal,

disability, and race, through a continuous pattern of harassment

and intimidation when:

1. Complainant was escorted from the DFAS facility on July

18, 2001; and

2. Complainant's supervisor, S4, advised creditors in the

period of July through December of 2001, that complainant was

no longer employed at the agency's San Bernardino Facility.

Complainant's harassment claim, the AJ found, included an incident already

stated in agency case number DFAS-DE-SANB-01-018 where complainant

claimed discrimination in connection with her escort by security from

the facility on July 18, 2001. With respect to the second incident

(claim (2)), the AJ found no evidence to support complainant's version of

the facts. On the contrary, S4 stated that she had not been contacted

by any outside creditors and a witness stated that when an apartment

manager contacted the agency, the manager was told that complainant was

still on the payroll. Accordingly, the AJ found that complainant did

not present sufficient evidence that she was subjected to harassment as

alleged on any basis.

DFAS-DE-16-SANB-02-010

Complainant alleges that she was harassed, caused ongoing

stress and duress and discriminated against based on her age,

sex, reprisal, race, and disability, when upon complainant's

termination on January 18, 2002, she did not receive a lump

sum payment for annual leave, for credit hours, and her 2002

pay raise, and that the agency did not terminate complainant's

charity deduction in 2001, and the agency attempted to prevent

complainant from received unemployment benefits.

Regarding complainant's receipt of payments of her salary, annual leave

and other benefits after her termination, the AJ found that the evidence

showed that agency followed its own policy and that complainant was

paid in accordance with that policy, without regard to her race, sex,

age, disability or reprisal. With respect to unemployment benefits,

the AJ found that the payment of unemployment benefits was beyond the

control of the agency. The AJ therefore found that discrimination did

not occur as alleged in agency case number DFAS-DE-16-SANB-02-010.

DFAS-DE-SANB-02-011

Complainant alleged discrimination based on her age, race,

sex, reprisal, disability, and harassment, in January 2002,

complainant's complaint which bears DFAS-DE-SANB-02-001, was

allegedly improperly dismissed by the agency EEO Director.

This complaint, the AJ found, was decided by a previous decision,

specifically, EEOC Appeal No. 01A21914.

DFAS-DE-13-SANB-02-013

Complainant alleged harassment on the basis of age, race, sex,

reprisal, mental disability, when:

1. Complainant received an SF-50 as part of a MSPB case

file of February 23, 2002, for a personnel action approximately

two years earlier;

2. Complainant was not provided an SF-50 for termination

on January 18, 2002;

3. S4 contacted the California State University to request

information regarding her, without her knowledge, and

4. The previous director of DFAS, San Bernardino, M4, issued

a letter to the facility's security firm singling complainant

out and denied her the same right as others.

With respect to incident (1), the AJ found that complainant was not

harmed by receiving an SF-50 from two years earlier, as part of the

evidence included with her Merit Systems Protection Board appeal.

The AJ also found that employees who receive a notice of termination

do not generally receive an SF-50 at the time they are separated from

service and so complainant could not show how she was treated differently

than any other employee under similar circumstances. With respect to

incident (3) of complainant's harassment claim, the AJ found that S4

had properly contacted the school where complainant claimed to have

been enrolled for purposes of determining whether complainant should be

excused from mandatory overtime. Regarding complainant's claim that

she was singled out by M4 when he issued a letter to the security firm,

the AJ noted that complainant failed to identify any other employees who

had behaved as she had, specifically, made repeated calls to security

to remove her supervisor from her work area. Failing any comparative

employees, the AJ found that complainant did not establish a prima facie

case of discrimination on any basis.

DFAS-DE-SANB-03-025

Complainant alleged discrimination on the bases of age, sex,

race, reprisal and disability, when tax withholding information

on her W-2 form for wages received from DFAS San Bernardino for

tax year 2002, was not accurate and in January 2003, the agency

(DFAS Civilian Pay in Pensacola, Florida) denied her request to

provide her with a corrected W-2 form.

With respect to complainant's claim regarding the preparation of her

tax forms (W-2), the AJ observed that agency officials responsible for

preparation of complainant's tax forms were located in Florida and did

not know complainant's race, age, her prior EEO activity, or that she had

any disabilities. They were aware that she was female, the AJ found,

because complainant contacted them by telephone. However, complainant

did not show, the AJ found, that if there were mistakes on her W-2 forms,

that the mistakes were made or not corrected, because she was female.

The AJ found that complainant did not show that discrimination occurred

with respect to the preparation of her tax forms for wages received for

tax year 2002.

Complainant's overall claim of harassment

The AJ considered complainant's overall claim of harassment, taking

into consideration the series of incidents that occurred over time,

including the discrete incidents as well as the other events complainant

described as discriminatory. The AJ noted that complainant's complaints

identified different supervisors and management officials and that

even where one supervisor was responsible for multiple events, taken

together, complainant did not describe events that rose to the level

of harassment.

Accordingly, the AJ found that complainant did not show that

discrimination on any basis occurred with respect to any of her 16

complaints or her overall claim of harassment. The agency subsequently

issued a final order adopting the AJ's finding that complainant failed

to prove that she was subjected to discrimination as alleged.

ANALYSIS AND FINDINGS

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.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,

1999).

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

To establish a claim of harassment based on race, sex, disability, age,

or reprisal, complainant must show that: (1) he is a member of the

statutorily protected class; (2) he was subjected to harassment in the

form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the statutorily

protected class; and (4) the harassment affected a term or condition of

employment and/or had the purpose or effect of unreasonably interfering

with the work environment and/or creating an intimidating, hostile, or

offensive work environment. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The

harasser's conduct should be evaluated from the objective viewpoint of a

reasonable person in the victim's circumstances. Enforcement Guidance on

Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

Further, the incidents must have been "sufficiently severe and pervasive

to alter the conditions of complainant's employment and create an abusive

working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75

(1998). In the case of harassment by a supervisor, complainant must

also show that there is a basis for imputing liability to the employer.

See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

As a preliminary matter, we note that complainant has not appealed

any ruling made by the AJ or the agency regarding any claims that were

dismissed from any of her complaints prior to the hearing in February

2005. Accordingly, we confine our decision to the claims addressed in

the AJ's decision and the agency's final order.

In the instant case, we find that substantial evidence supports

the AJ's decision in all respects.6 With respect to agency case

DFAS-DE-SANB-98-040, we find that substantial evidence supports the AJ's

finding regarding complainant's request for accommodation of her carpel

tunnel/tendonitis and DeQuarvain's syndrome. We find that the agency

engaged in the interactive process and that complainant was ultimately

accommodated. We concur with the AJ that complainant's decision not

to communicate with MS1 perpetuated the delay in procurement of the

necessary modifications to complainant's work station.

We have considered complainant's claims individually and as an overall

claim of harassment. We find that the record confirms the AJ's finding

that complainant was eventually unhappy with each identified supervisor

(S2, S3, and S4) shortly after she began working for them and find that

the supervisors provided non-discriminatory reasons, for taking the

actions they took. We find that the record supports the conclusion that

the agency's legitimate, non-discriminatory reasons for its actions were

not shown to be pretext in any of complainant's complaints.

CONCLUSION

We AFFIRM the agency's final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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

February 25, 2009

__________________

Date

1 Complainant's 16 complaints each allege one or more bases of

discrimination as indicated.

2 The agency consolidated some of complainant's complaints for processing.

For instance, by letter dated May 2, 2000, complaints DFAS-DE-SANB-99-029,

DFAS-DE-SANB-00-007, DFAS-DE-SANB-00-016, and DFAS-PSO-SB-99-008 were

consolidated for processing. The AJ ultimately ordered complainant's

sixteen complaints consolidated and heard on consecutive days in February

2005.

3 The AJ dismissed complaint number DFAS-DE-SANB-99-008, and additionally,

found no discrimination occurred, assuming for the sake of argument

only, that complainant had shown some adverse action occurred when the

memorandum was placed in her official personnel file.

4 The AJ corrected the framing of this claim to reflect the dates at issue

as revealed by complainant during the investigation of this complaint.

5 In Desiree Brown v. Department of Defense, EEOC Appeal No. 01A21914

(June 7, 2002), the Commission found that the purported actions of the

agency legal counsel in the context of actions involving the U.S. Office

of Special Counsel, Department of Labor, and Congressional inquiries,

do not demonstrate an injury to a term, condition, or privilege of

complainant's employment for which there is any remedial relief through

the EEO process.

6 For the purposes of this decision only, we presume, without deciding,

that complainant is a qualified individual with a disability.

??

??

??

??

2

0120061158

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

16

0120061158