01a50859
05-04-2005
Georgia F. Moore, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Georgia F. Moore v. Department of the Army
01A50859
May 4, 2005
.
Georgia F. Moore,<1>
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A50859
Agency No. BHEFFO00012A0650
Hearing No. 310-2003-05484X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant, a former Medical Clerk, GS-0679-04, at the agency's DENTAC,
Dental Clinic #5, in Ft. Hood, Texas, filed a formal EEO complaint
on January, 5, 2001. Therein, complainant claimed that the agency
discriminated against her on the bases of race (Caucasian), age
(D.O.B. 8/13/60), and in reprisal for prior EEO activity when:
(1) on September 17, 2000, complainant's former supervisor berated her
in the presence of co-workers at Dental Clinic #5;
(2) on September 28, 2000, complainant discovered that management at
Dental Clinic #5 retained paperwork concerning her previous employment
at Dental Clinic #3;
(3) her former supervisors failed to provide a timely performance
evaluation in 1999; and rated her for 14 months (June 30, 1999 to August
31, 2000) on her performance evaluation signed by her on October 11,
2000. Complainant was given an overall performance evaluation of
�Successful 3" for the rating period; and
(4) on November 28, 2000, complainant's former supervisor presented her
with three memorandums at her new duty assignment in Dental Clinic #3.<2>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision on August 30,
2004, finding no discrimination.
In his decision, the AJ found that complainant failed to establish
a prima facie case of race and age discrimination; however, she did
establish a prima facie case of reprisal discrimination concerning the
three memorandums (claim (4)). Irrespective of whether complainant
established a prima facie case, the AJ determined that the agency
articulated legitimate, non-discriminatory reasons for its actions
that complainant did not establish were a pretext to mask unlawful
discrimination and/or retaliation.
Regarding claim (1), complainant's former supervisor (S1) stated that
guidance papers were left at the front desk �so that if anybody was
working the front desk, and a reservist member came into the dental
clinic, we would know the specifics of whether or not they qualify
for treatment, based on their orders.� The S1 further stated that
complainant was present when the guidance papers were left at the
front desk, and that she was aware of their contents. The S1 stated
that a reservist asked one of complainant's co-workers a question
about dental care. The S1 stated that the reservist became upset and
got into a confrontation with the co-worker. The S1 stated that the
co-worker was upset because complainant did not assist her answering the
reservist's questions. The S1 stated that she met with complainant and
the co-worker, and asked complainant what happened to the guidance papers,
and why she did not give the co-worker any information concerning the
reservist's questions. The S1 stated that she did not use a hostile
tone when questioning complaint because there was confusion about the
incident involving the co-worker and reservist. The S1 stated that she
was attempting to ascertain what occurred.
Regarding claim (2), the S1 stated that complainant requested to go
through her file and that she gave complainant permission to go through
her file with a named Sergeant present. The S1 stated that after
complainant checked her file, she, (the S1) went through complainant's
file, and discovered a yellow folded paper concerning complainant's
previous employment at Dental Clinic #3 because it was stuck in the
bottom of complainant's file. The S1 stated that a few days later,
complainant asked to see her file again, and found the subject paper.
The S1 stated that complainant informed her that the paper was not in her
file the last time she checked the file, and requested that the paper
be removed from the file because of an agreement she had with a named
Commander wherein the paper was supposed to be removed from her file.
The S1 stated that she told complainant if complainant could produce any
documentation supporting her assertion that the paper should be removed,
then S1 would remove it from complainant's file. The S1 also stated that
she informed complainant that she would look into complainant's request.
The S1 stated that she contacted the named Commander's secretary,
the Employee Relations Specialist, and the Labor Relations Specialist
to find out if there was an agreement stating that the paper was to
be removed from complainant's file. The S1 stated that because no one,
including complainant, could produce the information, she left the paper
in complainant's file. The AJ noted, moreover, that a Labor Relations
Specialist (L1) stated that when an employee is transferred from one
clinic to another, the transferred employee's documentation follows
the employee.
Regarding claim (3),the S1 stated that in the summer of 1999, she took
over Noncommissioned officer in charge (NCOIC) duties in Dental Clinic
#5. The S1 stated she then discovered that the civilian performance
appraisals were not current. The S1 stated that the L1 and an Employee
Relations Specialist informed the S1 that she did � not have to make
up that nonrated time, but I told them I did not feel . . . that my
civilians should be penalized for something that we should have made
happen, because we should have actually double checked behind [former
NCOIC].� The S1 stated that after seeking advice from various management
officials, she gave the employees a choice between (a) a long evaluation
from her or (b) a memorandum that could put in their file stating
that it would not disadvantage them to not have a rating, because the
previous Supervisor did not provide a rating. The S1 stated that she
informed complainant that she could not give complainant a rating for
the period ending in 1999. Furthermore, the S1 further stated that she
rated complainant for 14 months, from June 30, 1999 to August 31, 2000.
The former Employee Relations Specialist (E1) stated that part of his
duties was to focus on the handling of civilian employment appraisals.
The E1 further stated that as part of the TAPES [Total Army Performance
Evaluation System] regulations, employees will be evaluated annually.
The E1 stated that the S1 �inherited I think basically a bunch of
employees who hadn't been appraised for a year or so, and so she was
trying to get them cleaned up and also to get them so they could get
them back current on their appraisals.� The E1 stated that he commended
the S1 for tackling a difficult job in ensuring that employees were
appraised, and that their appraisals were appropriately documented.
Furthermore, the E1 stated that the S1 �wasn't trying to hide anything.
She was trying to make things right for the employees.�
The AJ noted that complainant was given a �fully successful� evaluation,
and that she did not provide evidence indicating that other similarly
situated individuals not of her protected classes were treated more
favorably. The AJ noted that complainant's previous supervisor had
given her a higher evaluation, but the AJ determined that �this doesn't
support her position that she was discriminated against� by S1.
Regarding claim (4), the S1 stated that because complainant had
voluntarily moved to her new duty assignment in Dental Clinic #3,
the S1 contacted complainant's new supervisor and received permission
to hand complainant the three memorandums at her new duty assignment.
As to the first memorandum dated November 23, 2000, the S1 stated that
she issued complainant this memorandum concerning complaints about
complainant tape recording conversations in the clinic. Specifically,
the S1 stated that two soldiers approached her and shared their concerns
that complainant showed them a tape recorder and informed them that she
was going to record conversations at the clinic. The S1 stated that
she contacted the L1, the Civilian Personnel Office, a named legal
representative and JAG to get advice on how to resolve this matter.
The S1 stated that she was instructed to inform complainant that taping
conversations on government premises was inappropriate. Specifically,
the S1 stated that in the November 23, 2000 memorandum, complainant was
informed that �secretly taping conversations on government premises is
not permitted, and this is not an acceptable behavior.� The S1 stated
that complainant was also informed that if she continued tape recording
conversations, she would be subjected to disciplinary action.
Regarding the second memorandum, dated November 22, 2000, the S1
stated that she issued complainant this memorandum concerning place
of duty changes. Specifically, the S1 stated that a front desk clerk
position had opened up in Dental Clinic #3, and that complainant had let
it be known that she wanted to be transferred out of Dental Clinic #5.
The S1 stated that the purpose of the memorandum was to state for
the record that complainant was given one day's notice of the change,
and that she waived the requisite 7-day notice requirement, and began
working at Dental Clinic #3 the next day.
Regarding the third memorandum, dated November 8, 2000, the S1 stated
that the Officer-in-Charge (OIG) of Dental #5 issued this memorandum as
a point of clarification. Specifically, the S1 stated that complainant
volunteered to assist a named Captain on a project. The S1 stated that
after the named Captain informed the S1 that complainant volunteered to
pay for labeling items, she explained to the Captain the problems with
civilian employees purchasing agency supplies with their own funds.
The S1 stated that complainant informed the OIG that the S1 told the
Captain that complainant was �a lot of trouble.� The S1 stated that
after the OIG interviewed her and the named Captain, they determined
that the entire matter was simply a misunderstanding. The S1 stated
that the purpose of the OIG issuing complainant a memorandum was �his
explanation of his investigation into that allegation.�
The agency's final order dated September 30, 2004, implemented the
AJ's decision.
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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its
employment actions. The record reveals that in her testimony, the
S1 stated that she did not discriminate against complainant based on
her race, age or prior protected activity in claims (1) - (4). After a
careful review of the record, the Commission finds that the AJ's findings
of fact are supported by substantial evidence in the record and that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that the agency's actions were motivated by
discriminatory animus toward complainant's race, age or prior protected
activity. We discern no basis to disturb the AJ's decision.
After a careful review of the record, we AFFIRM the agency's final order,
implementing the AJ's finding of no discrimination.
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
May 4, 2005
__________________
Date
1During the relevant period, complainant
changed her last name from �Vasquez� to �Moore.�
2For purposes of clarity, the Commission has re-numbered complainant's
claims as claims (1) - (4).