01a05491
02-06-2001
Karen L. Tucker, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Karen L. Tucker v. Department of the Navy
01A05491
2/6/01
.
Karen L. Tucker,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A05491
Agency No. DON-95-60201-017
Hearing No. 150-98-8394X
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.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges she was discriminated against on
the bases of sex (female), age (49), and reprisal (prior EEO activity),
when: (1) on May 4, 1995, she was subjected to sexual harassment; and
(2) in June 1995, she was denied placement into the agency's Voluntary
Separation Incentive Program (VSIP). For the following reasons, the
Commission AFFIRMS the agency's final order.
The record reveals that complainant, then a Resource Management Officer
at the agency's Mayport Naval Station, Mayport, Florida facility, filed
a formal EEO complaint with the agency on July 20, 1995, alleging that
the agency had discriminated against her as referenced above. 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 finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of hostile work environment sexual harassment. The record reveals
that on May 4, 1995, complainant was in attendance at an agency meeting.
During the meeting, one of complainant's co-workers (hereinafter referred
to as �Captain�), was on the phone with agency legal counsel. Apparently,
there was a lot of noise in the room, and the agency counsel remarked
to the Captain something to the effect that it did not appear that the
group was working very hard. It is not disputed that the Captain then
stated, �no, we're working real hard here; Karen put your clothes on.�
The record also reveals that the Captain subsequently apologized to
complainant for the comment and also apologized to the entire group in
attendance at the meeting.
The AJ found that although the comment was inappropriate and
unprofessional, it was an isolated occurrence. Additionally, there was
no evidence of any requests for sexual favors, or any evidence that the
statement unreasonably interfered with complainant's work environment.
Although complainant testified to other events that she argued constituted
a hostile work environment, the AJ found the other incidents were not
attributable to the Captain, and preceded the statement alleged herein.
In sum, the AJ found complainant failed to establish that she was
subjected to sexual harassment or a hostile, offensive work environment.
As for complainant's second claim, the AJ assumed that complainant
established a prima facie case of discrimination when she was denied
placement into the agency's VSIP. The AJ further concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ found that complainant was not permitted to retire through the
VSIP because a match<2> for her did not materialize, and secondly, her
department was under investigation for possibly engaging in inappropriate
transfer of funds.
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination or retaliation. In reaching this conclusion,
the AJ found credible evidence that there was no match for complainant.
Although the agency's personnel specialist was unaware of any regulation
that prohibited an individual under investigation from retiring, there
was a legitimate concern that there was a violation of the law concerning
the disbursement of funds. The AJ found insufficient evidence of a
discriminatory animus on the Captain's part, when he denied complainant
placement into the VSIP. On June 30, 2000, the agency issued a final
order that implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
Furthermore, she argues, through her representative, that the AJ failed
to conduct a fair hearing. In response, the agency restates the position
it took in its FAD, and requests that we affirm its final order.
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).
After a careful review of the record, the Commission finds 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 any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's sex or age. Although
complainant alleged on appeal that she was subjected to additional acts
of harassment, the AJ considered complainant's testimony, and found the
actions were not attributable to the agency, nor did the claims constitute
acts of sexual harassment. We discern no basis to disturb the AJ's
decision, which is supported by substantial evidence. 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 final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
2/6/01
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2When an individual request retirement through the VSIP, a requisition for
another employee with the same series and grade is made to the Priority
Placement Program (PPP). If there is a match with an individual on the
PPP because they have been adversely affected at another command, and
the individual is qualified for the position, then the match is placed
into the position that has been requisitioned, and the incumbent retires
under the VSIP.