0120083606
02-10-2009
Elaine Leap, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Elaine Leap,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120083606
Agency No. P20050197
DECISION
On August 18, 2008, complainant filed an appeal from the agency's August
1, 2008 final decision 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the final agency decision.
During the relevant period, complainant worked as an Education Specialist
at a satellite prison camp of the agency. In a formal EEO complaint
dated April 22, 2005, complaint alleged that the agency discriminated
against her on the bases of sex (female) and reprisal for prior protected
EEO activity when, on November 29, 2004, she was reassigned from the
satellite camp to the Federal Correctional Institution in Cumberland,
Maryland (FCI). Complainant stated that, initially, the agency told
her that she would return to her former assignment in March 2005, after
one quarter. Complainant added that, on March 7, 2005, she was placed
in a classroom directly across from an inmate restroom and she could see
the inmates standing at urinals and adjusting clothing, and her request
for a change was denied. Lastly, complainant alleged that she is not
asked to serve acting supervisor.
The agency conducted an investigation of complainant's complaint.
During the agency investigation, the Warden (S1) stated that management
and the union had concerns about appropriate rotation of Education staff
between the camp and the FCI, and complainant had been at the camp for an
extended period. The Education Supervisor (S2) stated that, initially,
complainant was reassigned temporarily, but two teachers were no longer
available to FCI so she had to make staffing adjustments. S2 added that
complainant was assigned to the satellite camp about seven years, the
Education staff needed exposure to various aspects of the department,
and the union approved the changes. Further, regarding the location of
complainant's classroom, S2 stated that complainant had to make an effort
to see into the inmate restroom because she taught from the front of the
class and the restroom could only be seen from the middle and if the door
was open. Lastly, S2 stated that complainant has a negative attitude
toward her coworkers and inmate students so she would not assign her as
"acting" until she could be "cooperative and a team player."
Following its investigation, the agency provided complainant a copy of
the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ) or an immediate final decision
by the agency. Complainant requested the latter. In a decision dated
August 1, 2008, the agency found that complainant failed to prove that
she was subjected to discrimination as alleged. The final decision found
that complainant failed to show that the agency's actions were motivated
by discriminatory factors. The instant appeal from complainant followed.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that the EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of the
law.")
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). She must
generally establish a prima facie case by demonstrating that 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). The prima facie inquiry
may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
See U. S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the instant matter, we find that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus toward
her protected classes. We find that complainant failed to show pretext.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency decision.
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 10, 2009
__________________
Date
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0120083606
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083606