02a50012
11-16-2005
Dr. Carol Sedlacek, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Dr. Carol Sedlacek v. Department of the Army
02A50012
November 16, 2005
.
Dr. Carol Sedlacek,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 02A50012
DECISION
The complainant timely initiated an appeal from an agency decision
concerning her grievance of 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. The FAD gave appeal rights to
this office within the Equal Employment Opportunity Commission (EEOC or
Commission). The appeal is accepted pursuant to 29 C.F.R. � 1614.401(d)
and .405. For the following reasons, the Commission affirms the FAD.
The complainant was employed as a Procurement Analyst at the agency's
Redstone Arsenal in Alabama. In April 2004, the agency issued a
memorandum notifying the complainant that she was being involuntarily
laterally reassigned to the position of Program Specialist in a different
Redstone Arsenal office.
The complainant filed a grievance claiming that the reassignment was
discriminatory based on her sex (female). The reassignment letter
indicated that the complainant was reassigned because her skills would
be better utilized in the new position, promoting the efficiency of
the service.
The complainant contends that prior to being reassigned, she was harassed
by three co-workers (two males, one female). One male co-worker served
as her acting supervisor for a time. The complainant contends that
the harassment started because the three co-workers were jealous of her
getting an award since they knew they could not compete. According to
the complainant, the acting supervisor monitored her whereabouts, did
not inform her of meetings, gave some of her responsibilities to the
female co-worker above, and hid her work. She contends that the second
male co-worker treated her rudely with hateful looks, slamming doors
in her face, talking to others about her in a crude way, and so forth.
The alleged harassment culminated when in February 2005 this co-worker
allegedly struck her shoulder while passing by, causing bruising.
The complainant has variously described this incident as the co-worker
hitting her shoulder bag, �body slamming� her, and pushing into her.
The incident was investigated. According to the grievance decision, the
investigation did not substantiate the complainant's assault charge.
In fact, according to the complainant, the investigator claimed a
witness indicated the complainant hit the male co-worker, something
which the complainant denied. About a month after the incident, the
agency proposed the complainant's reassignment.
The complainant claims that her supervisor (male��not the acting
supervisor) was behind the reassignment. She theorizes that he retaliated
against her because she told the assault investigator that the supervisor
was a bad manager who allowed the hostility to grow into an assault.
She contends that rather than stopping the alleged harassment, she was
reassigned. She contends that when the alleged harassment was occurring
the supervisor said it would be easier to move the complainant than a
co-worker because she was the only marketable one in the group.
The complainant contended that right before giving her the proposed
reassignment letter dated March 8, 2000 (which was not by the
supervisor), the supervisor said, while refusing to elaborate, that
assault investigator believed the complainant needed to be reassigned
to another office. However, the complainant later contended that on
March 8, 2004, the supervisor called her into his office and said he
was reassigning her because she filed an Office of Workers' Compensation
Programs (OWCP) case regarding the alleged assault.
The complainant contends that in her new job she is physically isolated
from her co-workers and has little work to do.
The agency's decision found that there was insufficient evidence to
substantiate the complainant's claim of harassment. It found that
based on her dissatisfaction with her work environment, her excellent
qualifications, her work record, and the receiving unit's need for
talented employees, the reassignment was for the efficiency of the
service.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
The agency explained that it reassigned the complainant based on her
dissatisfaction with her work environment, her excellent qualifications,
her work record, and the receiving office's need for talented employees,
the reassignment was for the efficiency of the service.
The complainant contends that these reasons are pretext to mask sex
discrimination. There is insufficient documentation in the record,
however, to support her claim that she was reassigned because of her sex,
and not for the reasons stated by the agency. On appeal the complainant
claims that some males in the office commented that �she thinks she
is better than everyone else� and �she is a bitch.� While the latter
comment, which was raised for the first time on appeal, implicates
gender, the record does not show that management was aware of this nor
establish that the complainant was reassigned for complaining about sex
based harassment. The complainant indicated that the harassment was
based on events which did not implicate gender, such as people knowing
they could not compete with her (including a female), and the complainant
reporting people for arriving late and leaving early without taking leave.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
decision.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 16, 2005
__________________
Date