01a40310
02-11-2005
Jodi L. Chambers-Wilson, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Jodi L. Chambers-Wilson v. Department of the Army
01A40310
February 11, 2005
.
Jodi L. Chambers-Wilson,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A40310
Agency No. AFBGFO0001A0030
Hearing No. 210-2001-06096X
DECISION
The record indicates that complainant filed an appeal from the agency's
final action dated September 15, 2003, concerning her 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.
In her complaint, complainant alleged discrimination based on race
(White)<1> and in reprisal for prior EEO activity when she was subjected
to harassment. Specifically, complainant alleged that a coworker told
her that her children would suffer for the rest of their lives because she
made them Black; and she was separated from her position on November 12,
1999. The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ, after a hearing, issued a decision finding no discrimination,
which was implemented by the agency in its final action.
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.
The Commission finds that the AJ's factual findings of no discriminatory
intent is supported by substantial evidence in the record.
Initially, the AJ noted that complainant was employed as a part-time
Student Aide, Mail and File Clerk, GS-4, and held that position since
March 1998 until her termination on November 12, 1999. The AJ stated that
the coworker, who made the alleged remarks about complainant's children,
testified that at the time of the alleged remarks, she and complainant
were having a nice conversation and she �didn't mean anything� by what
she said. She also testified that her intent was not to be �crude,�
nor meant to be malicious, angry or hostile. The AJ also noted that
complainant did not raise this matter, which allegedly occurred sometime
shortly after she started working at the agency in March 1998, to her
supervisor until August 1998. Once the supervisor became aware of the
incident, she discussed such with the alleged coworker and determined
that the remarks were not made out of �malice� toward complainant, but
that the coworker was merely joining in on an ongoing conversation and
offered her opinion on the matter. The AJ stated that the supervisor also
counseled the coworker about her future communications with complainant.
The AJ concluded that based on the evidence and testimony at hearing,
complainant failed to establish a claim of harassment amounting to a
hostile work environment.
With regard to the issue of termination, the AJ determined that,
assuming arguendo that complainant had established a prima facie case
of discrimination, the agency articulated legitimate, nondiscriminatory
reasons for the alleged termination. The AJ stated that the evidence
clearly substantiates that management officials made the decision to
terminate complainant's employment based on her continued creation of
disturbances within the workplace. Specifically, complainant's supervisor
testified that she terminated complainant after countless attempts to
work with her, including her disrespectful and insubordinate electronic
mail message on November 5, 1999, and previous warnings and counseling.
The AJ stated that complainant had difficulty interacting with coworkers
and she received a Letter of Warning after she got into an argument
with another coworker and after she lost temper again on August 3, 1998.
Based on the evidence and testimony at hearing, the AJ further determined
that complainant was not engaged in minimally acceptable conduct and
she did not produce any evidence to contravene the above reasons.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
hereby AFFIRMED because a preponderance of the record evidence does not
establish that discrimination occurred.
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
February 11, 2005
__________________
Date
1Complainant explains that her race claims
are based on interracial association because she has �biracial� children.