01976408
09-21-2000
Elizabeth Wolverton, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Elizabeth Wolverton v. Department of Defense (Defense Logistics Agency)
01976408
September 21, 2000
.
Elizabeth Wolverton,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01976408
Agency No. HC94011
Hearing No. 250-95-8194X
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) concerning her complaint of employment discrimination
on the basis of mental disability (perceived mental instability and
violent tendencies) and 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., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791,
et seq.<1> Complainant claims she was discriminated against as evidenced
by the following incidents: (1) a conditional offer of the position of
Security Assistant (Position) was withdrawn; and reprised against when:
(2) her access to the Trade Security Control (TSC) area was restricted;
and (3) she was subjected to a hostile work environment. The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) to be codified
at 29 29 C.F.R. � 1614.405). For the reasons that follow, the agency's
decision is AFFIRMED.
Complainant, a Property Disposal Technician in the agency's National
Sales Office in Memphis, Tennessee, filed a formal EEO complaint on
September 12, 1994, alleging discrimination and reprisal as referenced
above. At the conclusion of the investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a Recommended Decision (RD), dated May 19, 1997, finding
no discrimination. The agency's FAD adopted the AJ's RD. It is from this
determination from which complainant now appeals.
Incident 1
The AJ concluded that complainant failed to establish a prima facie case
of discrimination because she did not demonstrate that the selecting
official (SO) perceived her to have a substantially limiting impairment,
so that complainant was not an �individual with a disability� as required
by 29 C.F.R. Part 1630.<2> See Nance v. Navy, EEOC Request No. 01964338
(October 16, 1998), (citing, Prewitt v. U.S. Postal Service, 662 F.2d
292 (5th Cir. 1981)). The AJ noted that complainant was tentatively
offered the Position conditional on receiving an acceptable background
check and security clearance, which was required for the Position.
While the background investigation was on-going, SO received information
adverse to complainant from two employees in the TSC office where the
Position was located. These two employees informed SO that complainant
had been spending a lot of time in the TSC office, and had relayed to
them some incidents from her personal life, mostly marriage related,
suggesting that she might be mentally unstable and unsuited for the
Position. Rather than waiting for the background investigation to
conclude, SO acted upon the information and withdrew the Position offer.
The AJ noted that SO testified that he thought SO was unsuited for the
Position, which dealt with highly sensitive criminal matters, but did not
otherwise perceive her as emotionally disabled or unable to perform in
less sensitive positions. Therefore, the AJ concluded that complainant
was not regarded as �disabled,� i.e., �substantially limited in a major
life activity,� within the meaning of the legal standard cited above,
and the prima facie case was therefore not established.
On appeal, complainant argues that the two employees are lying and
that SO's failure to allow her to address these allegedly slanderous
statements, or to refrain from making a decision until the background
investigation was complete, is evidence of discrimination. However,
we note that the AJ addressed both of these matters, observing that the
testimony offered on behalf of complainant was completely at odds with
the testimony on the agency's behalf concerning the truthfulness of
the information provided by the two employees, and that a credibility
determination on this point was impossible. However, the AJ indicated
that the truthfulness of the information was not the crucial determination
in deciding whether discrimination had occurred, but rather whether SO
believed the information was true. The AJ further found that although it
would have been more equitable if SO had permitted complainant to rebut
the adverse information, or had waited until the background investigation
was concluded before making a decision, there was no evidence to suggest
that either of these actions were motivated by the discriminatory animus
alleged.
Incident 2
The record shows that after the Position offer was withdrawn, one
of the two TSC employees from above informed SO that complainant
repeatedly entered the TSC office area and that she and many of the
employees who worked in that area had safety concerns. Consequently,
SO initiated an inquiry about how best to address this situation, which
eventually resulted in the TSC area restriction which is the subject of
this allegation.
In considering the evidence, the AJ determined that complainant failed
to establish a prima facie case of reprisal, finding that complainant
did not establish that the restriction to the TSC office constituted
an adverse employment action, or that the restriction was implemented
because of her EEO activity since the SO was not even aware of her
EEO counselor contact at the time he initiated the restriction inquiry.
See Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) and Frye
v. Department of Labor, EEOC Request No. 05940764 (December 15, 1994).
On appeal, complainant argues that the restriction is an adverse
employment action because the letter implementing the restriction is in
complainant's personnel file. However, our review of the record fails
to disclose a copy of this alleged letter, and there is no evidence to
show that such a letter is in complainant's personnel file. Instead, it
appears that a copy of an administrative memorandum, dated September 28,
1995, concerning the restriction, was given to complainant's supervisor
with the instructions to hand-deliver it to complainant as a means of
informally and unofficially implementing the restriction. Also on appeal,
complainant argues that SO was aware of her EEO counselor contact in
June 1995 by virtue of a letter she wrote to her Congressman. However,
that letter does not contain any mention of complainant engaging in
the EEO process. In any event, we agree with the AJ's determination
that the record is devoid of any evidence to suggest a nexus between
implementation of the restriction and complainant's EEO activity.
Incident 3
The AJ determined that complainant failed to establish a prima facie case
of harassment because the conduct she described was not sufficiently
severe or pervasive so as to create a hostile work environment. See
Lawrence v. Department of Treasury, EEOC Appeal No. 01965466 (October
16, 1998), (citing, Harris v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993)). Specifically, the AJ determined that complainant described about
six isolated incidents, largely perpetrated by the same two TSC employees
from above, and that complainant's testimony did not establish that, under
the �totality of the circumstances,� the conduct constituted harassment
under the legal standard cited above, notwithstanding complainant's eight
month absence from work and hospitalization for depression asserted to
be the result of this conduct. The AJ further found that complainant
failed to provide any evidence demonstrating a nexus between this conduct
and her EEO activity. See Hochstadt, supra. Complainant makes no new
contentions on appeal with respect to incident 3, but does allege that
the AJ committed error in making the above findings and by failing to
conclude that complainant was subjected to the severe harassment claimed.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's
RD sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. Therefore, we discern no basis upon which
to overturn the finding of no discrimination by the AJ, who found that to
the extent complainant may not have received equitable treatment by the
responsible management officials in this matter, this was a reflection
of management style, and not discrimination or reprisal. In this regard,
the AJ made specific credibility findings which are entitled to deference
due to the AJ's first-hand knowledge, through personal observation,
of the demeanor and conduct of the witnesses. Accordingly, it is the
decision of this Commission to AFFIRM the FAD which adopted the AJ's RD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
____________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 21, 2000
Date
_______________
Date
(FOR OFO MERIT CASES) (INTERNAL CIRCULATION ONLY)
INITIAL
DATE
TO: CARLTON M. HADDEN
TO: HILDA RODRIGUEZ
APPEAL NUMBER
01976408
AGENCY NUMBER
HC94011
REQUEST NUMBER
HEARING NUMBER
250-95-8194X
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY):
(SUPERVISOR):
(DIVISION DIRECTOR):
COMPLAINANT(S):
Eliazbeth Wolverton
AGENCY:
Department of Defense (Defense Logitics Agency)
DECISION:
STATUTE(S) ALLEGED:
Rehabilitation Act
BASIS(ES) ALLEGED:
ISSUE(S) ALLEGED:
WHERE DISCRIMINATION IS FOUND (ONLY):
(A) BASIS(ES) FOR FINDING:
(B) ISSUES IN FINDING:
TYPIST/DATE/DISKETTE
/
SPELL CHECK
YES
TEAM PROOFED
DATE
(CHECK ALL APPLICABLE CODES)
MERIT DECISION
MERIT DECISION (CONTINUED)
? 4A - MERITS DECISION
? 4B - OFO FOUND DISCRIMINATION
LIST BASIS CODES:__________________________________
LIST ISSUE CODES:__________________________________
? 4C - OFO FOUND NO DISCRIMINATION
? 4R - OFO FOUND SETTLEMENT BREACH
? 4S - OFO FOUND NO SETTLEMENT BREACH
? 4E - AGENCY FOUND DISCR./BREACH
? 4F - AGENCY FOUND NO DISCR./BREACH
? 4H - OFO AFFIRMED AGENCY
? 4I - OFO REVERSED AGENCY
? 4J - OFO MODIFIED AGENCY:
(NOTE): IF AFFIRMED IN PART AND REVERSED IN
PART, THEN (3L) CODE REQUIRED IF AT LEAST
ONE ISSUE IS REMANDED.
? 3L - OFO REMANDED PART OF AGENCY'S MERITS
DECISION. IF BREACH IS BASIS, USE OF (3L) ALSO
REQUIRES (4I) CODE.
? 3P - ADVERSE INFERENCE
? 4K - AJ FOUND DISCRIMINATION
? 4L - AJ FOUND NO DISCRIMINATION
? 4M - AJ MADE NO FINDING
? 4N - OFO AFFIRMED AJ
? 4O - OFO REVERSED AJ
? 4P - OFO MODIFIED AJ
? 4T - AJ ISSUED SUMMARY JUDGMENT DECISION
? 4U - OFO AFFIRMED AJ SUMMARY JUDGMENT
? 4V - OFO REVERSED AJ SUMMARY JUDGMENT
? 3H - OFO DENIED ATTORNEYS FEES
? 3I - OFO APPROVED ATTORNEYS FEES
? 3J - OFO MODIFIED ATTORNEYS FEES
? 4Q - COMPLIANCE REQUIRED
REVISED - (2/3/00)
* * * * * * * * * * CIRCULATION CASE * * * * * * * * * *
APPELLATE DECISION ON FEDERAL SECTOR COMPLAINT
TO: (Please sign to indicate receipt)
Chairwoman Ida L. Castro
Vice Chairman Paul M. Igasaki
Commissioner Paul Steven Miller
Commissioner Reginald E. Jones
Date circulated to Commission
Commission Record No.
FROM: Executive Secretariat, Room 10402, Ext. 663-4068
Unless the Executive Secretariat is notified that a Commissioner wishes
to hold this decision, it will be considered approved and will become
official at 11 AM on .
HELD BY:
Commissioner
Staff Member
Date
(1)
(2)
RELEASED BY:
(1)
(2)
Recommended for Approval on:
Request No.
Appeal No.
01976408
Agency No.
HC94011
Carlton M. Hadden, Director, Office of Federal Operations
Hearing No.
250-95-8194X
PREPARED BY:
Title
Name
Initial
Date
Phone Number
Attorney
ext.
Supervisor
ext.
Division Director
ext.
Complainant:
Eliazbeth Wolverton
Agency:
Department of Defense (Defense Logitics Agency)
Decision:
Statutes Alleged:
Rehabilitation Act
Basis(es) Alleged:
Issue(s) Alleged:
Where discrimination was found ONLY:
Typist/Date/Disk:
/
(A) Basis(es) for finding:
Spell Check:
YES
(B) Issues in finding:
Team Proofed:
01 / 02 CASE DISPOSITION SHEET
Complainant
Agency
Appeal No.
Eliazbeth Wolverton
Department of Defense (Defense Logitics Agency)
01976408
Check ALL applicable codes
PROCEDURAL DECISION
No finding by OFO on allegations of discrimination or no discrimination,
or on allegations of breach of settlement agreement or lack of breach
of settlement agreement.
? 3K - Procedural Decision
MERITS DECISION
Must include finding by OFO of discrimination or no discrimination,
or of breach of settlement agreement or lack of breach of settlement
agreement on at least one issue.
? 4A - Merits Decision
? 3N - Deny / dismiss appeal
? 4H - OFO affirmed agency
? 3L - OFO vacated/remanded ALL of agency's merits
decision
? 3M - OFO reversed/remanded agency's procedural
decision
? 4J - OFO modified FAD (NOTE: if affirmed in part and
reversed in part, then 3M code required)
? 3P - Adverse inference
? 4B - OFO found discrimination
List Basis codes:
List Issue codes:
? 4C - OFO found no discrimination
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found discrimination / breach
? 4F - Agency found no discrimination / breach
? 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed in part and
reversed in part, then 3L code required if at least one
issue is remanded)
? 3L - OFO remanded PART of agency's merits decision. If
breach is basis, use of 3L also requires 4I code.
? 3P - Adverse inference
? 4Q - Compliance required
? 4K - AJ found discrimination
? 4L - AJ found no discrimination
? 4M - AJ made no finding
OTHER CLOSURE CODES
Do NOT include 3K or 4A codes
? 3B - FAD rescinded
? 3C - Duplicate docket #
? 3D - Withdrawal
? 3E - Complaint settled
? 3G - Other letter closure
? 3R - Return to agency for consolidation
? 3S - Return to AJ for consolidation
? 7N - Civil action filed
? 4N - OFO affirmed AJ
? 4O - OFO reversed AJ
? 4P - OFO modified AJ
? 4T - AJ issued Summary Judgment decision
? 4U - OFO affirmed AJ Summary Judgment
? 4V - OFO reversed AJ Summary Judgment
? 3H - OFO denied attorney's fees
? 3I - OFO approved attorney's fees
? 3J - OFO modified attorney's fees
? 4Q - Compliance required
Revised - 2/3/00
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.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. The ADA regulations
set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC's website:
www.eeoc.gov.