Latrese D. Scott-Brown, Complainant,v.William S. Cohen, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity CommissionSep 7, 2000
01993758 (E.E.O.C. Sep. 7, 2000)

01993758

09-07-2000

Latrese D. Scott-Brown, Complainant, v. William S. Cohen, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.


Latrese D. Scott-Brown v. Department of Defense

01993758

September 7, 2000

Latrese D. Scott-Brown, )

Complainant, )

) Appeal No. 01993758

v. ) Agency No. M-9606

) M-9610

William S. Cohen, ) M-9707

Secretary, ) Hearing No. 120-97-4263X

Department of Defense ) 120-97-4362X

(Defense Contract Audit Agency), ) 120-98-9375X

Agency. )

____________________________________)

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

concerning her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

For the following reasons, the Commission partially AFFIRMS and partially

REVERSES the agency's final decision.

ISSUES PRESENTED

The issues presented herein are whether complainant has established, by

preponderant evidence, that she was discriminated against on the bases

of race (African-American) and reprisal (prior EEO activity) when:

(1) she was charged 125 hours of AWOL for the period of October 13,

1995 to November 3, 1995; (2) on November 8, 1995, her performance

evaluation was modified to �fully successful�; (3) on November 20,

1995, her request for 240 hours of advanced sick leave was denied; (4)

as of November 1, 1995, she had not been placed in the Voluntary Leave

Donation Program (VLDP); (5) she was not allowed to earn credit hours or

work overtime on weekends and during holidays without prior approval;

(6) she was required to make a work schedule and adhere to it; (7)

her Branch Manager complained to her (complainant's) supervisor that

there was a lack of office coverage when complainant was not at work;

(8) on April 1, 1996, she was issued a letter of reprimand; and (9)

on April 8, 1997, she was suspended without pay for three days.

BACKGROUND

Complainant, employed by the agency as a Clerk/Typist (GS-04) at the time

of the alleged discrimination, filed formal complaints on December 27,

1995, June 24, 1996, and May 15, 1997, in which she raised what have been

identified as the issues presented. Issues (1) - (7) were contained in

the first complaint; issue (8) was contained in the second; and issue (9)

was contained in the third.<2> On October 8, 1996, complainant requested

a hearing before an EEOC Administrative Judge (AJ). Subsequently,

the complainant, the agency, and the AJ agreed to combine the first two

complaints for hearing.<3> On January 1, 1998, complainant requested

a hearing regarding her third complaint. By letter dated February 20,

1998, the AJ indicated that he was combining the third complaint with

the first two. The hearing on all three complaints was held on July 22

and 23, 1997.

On January 12, 1999, the AJ issued a finding of discrimination on

the basis of reprisal (not race) regarding issues (3), (4), and (9).

Regarding the remaining issues the AJ found that the complainant was not

subjected to discrimination as alleged.<4> Finally, we note that the

AJ's findings indicated that complainant was not entitled to compensatory

damages.<5> In its final decision, the agency affirmed the AJ's findings,

except the finding of discrimination regarding issue (9). It is from

that decision that complainant appeals.

ANALYSIS AND FINDINGS

All post-hearing factual findings by an AJ will be upheld if supported by

substantial evidence in the record. 64 Fed. Reg 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405(a)). 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 concludes that

the AJ's decision summarized the relevant facts<6> and referenced the

appropriate regulations, policies, and laws. Therefore, we discern no

basis to disturb the AJ's decision. After a careful review of the record,

including complainant's arguments on appeal, the agency's response

thereto, and arguments and evidence not specifically discussed in this

decision, the Commission REVERSES the agency's final decision regarding

issue (9) and REMANDS the matter to the agency to take remedial actions in

accordance with this decision and the ORDER below. The Commission AFFIRMS

the final agency decision regarding the remaining issues, including the

one concerning complainant's entitlement to compensatory damages.

We note that regarding issues (1), (3) - (6), (8), and (9), the AJ found

that complainant could not prevail on her claims of racial discrimination

because she failed to compare herself to similarly situated individuals

not in her protected class, and therefore, did not establish a prima facie

case of discrimination.<7> Comparative evidence, however, is only one

way of establishing a prima facie case, and there are other methods of

making such a showing. See O'Connor v. Consolidated Coin Caterers Corp.,

517 U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated

Coin Caterers Corp., EEOC Notice 915.002 (September 18, 1996). In this

case, complainant has offered no evidence, comparative or otherwise,

to establish a prima facie case of racial discrimination regarding the

aforementioned issues.

We also note that, regarding issues (6) and (8), the AJ, when analyzing

complainant's reprisal claim, found that the agency articulated

legitimate, nondiscriminatory reasons for its actions. He did not,

however, analyze whether complainant met her burden of proving that the

agency's articulated reasons were a pretext for discrimination. After

conducting such an analysis, we find that she did not. In attempting to

prove pretext, complainant merely stated that the employees who testified

for the agency regarding these two issues should not be believed. That,

however, is not sufficient to prove that the agency's articulated reasons

were discriminatory.

ORDER (C1199)

The agency is ORDERED to take the following remedial action:

(1) per the AJ's order and the agency's agreement thereto, pay the

complainant for 200 hours of sick leave for hours that she may have

received if she had been allowed to participate in the Voluntary Leave

Donation Program;

(2) remove the three-day suspension that occurred from April 8, 1997 to

April 10, 1997 from complainant's personnel file and compensate her for

the three days;

(3) train all responsible supervisory and management officials at the

Defense Contract Audit Agency's (DCAA) District Branch Office in Landover,

Maryland, regarding reprisal discrimination;

(4) complete all the above actions within ninety (90) calendar days

after this decision becomes final; and

(5) submit a report of compliance, as provided in the statement entitled

�Implementation of the Commission's Decision.� The report shall include

supporting documentation verifying that the remedial action has been

implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its DCAA District Branch Office,

Landover, Maryland, facility copies of the attached notice. Copies of the

notice, after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an

award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action AFTER

ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

September 7, 2000

______________________ ____________________________

Date Carlton M. Hadden, Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________________ ______________________________

Date Employment Opportunity Assistant

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.

2 It should be noted that the first complaint contained two additional

issues; one was remanded for counseling, the other was procedurally

dismissed. Complainant appealed the dismissed allegation to the

Commission and the appeal was dismissed as untimely filed. It should

also be noted that, in addition to the letter of reprimand, the second

complaint contained a claim of verbal and physical abuse. In its

final decision, the agency stated that the AJ ruled that the second

complaint was only about the letter of reprimand. Since this ruling

is not challenged in the complainant's post-hearing brief or on appeal,

that issue will not be addressed in this decision.

3 At this point, the third complaint was not an issue because it had

not been filed.

4 We note the AJ also found that issue (1) was moot and issue (7) failed

to state a claim. Because the AJ, in light of any possible procedural

defects, considered the merits of those two issues, the validity of

those procedural findings will not be addressed herein.

5 The AJ found that complainant presented insufficient proof of

compensatory damages.

6 For that reason, we decline to restate the facts in this decision.

7 The AJ also made this same finding regarding issue (2). But because he

analyzed the agency's legitimate, nondiscriminatory reason with respect to

this issue and found that the complainant did not prove that the reason

was a pretext for discrimination, his finding that she failed to prove

a prima facie case is irrelevant.