01972673
09-07-1999
Lucinda Carpenter, Appellant, v. William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Lucinda Carpenter, )
Appellant, )
) Appeal No. 01972673
v. ) Agency No. CA-94-016
) Hearing No. 220-95-5416X
William S. Cohen, )
Secretary, )
Department of Defense )
(Defense Logistics Agency), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (female) and age (DOB:
11/19/36), in violation of Title VII of the Civil Rights Act of 1964,
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.
Appellant alleged she was discriminated against when: (1) on July 12,
1994, she was verbally attacked by her supervisor who continued to harass
her for approximately one-half hour within hearing distance of other
employees; and (2) her supervisor and other male employees continually
harassed her during the three year period prior to her reassignment
on August 29, 1994. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that appellant, a former General Arts Assistant,
GS-1001-5, Audiovisual Branch, Installation Operations and Programs
Division, Office of Installation Services, Defense Construction Supply
Center, filed a formal EEO complaint with the agency on September
20, 1994, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Following a hearing, the AJ issued
a Recommended Decision (RD) finding no discrimination.
Appellant testified that on July 12, 1994, her supervisor (male, DOB:
11/17/35) questioned her in a loud voice, made derogatory comments about
her work performance, and interrogated her in front of other employees.
Furthermore, appellant alleged that for three years she was subjected to
harassment from a co-worker (DOB: 12/17/48). Appellant alleged that such
harassment included being punched in the back and being �body bumped�.
Appellant also alleged that the co-worker painted a big slash of
opaque on her chair, key scratched her car, and called her names.
In his decision, the AJ noted that the majority of these altercations
were reported to, and investigated by security, which determined there
was a personality dispute between appellant and the co-worker.
In response to appellant's allegations, the supervisor testified that any
problems which existed between himself and appellant were work related.
Specifically, he testified that if appellant's work was substandard,
he would speak to her about it. Although he testified that he may
have been stern with appellant, such discussions were needed due to
appellant's work performance. The AJ noted that two witnesses testified
as to the July 12, 1994, discussion between appellant and the supervisor.
Both witnesses testified that although the supervisor appeared bothered
and used a stern voice, he did not yell at appellant.
The AJ found that although the discussion between appellant and
her supervisor could have been handled better, the discussion was in
reference to appellant's work performance, which had been a problem for
a number of years. The AJ found that based on the evidence of record,
appellant's gender and/or age had no bearing on the admonishment.
With respect to appellant's allegation that she was harassed by her
co-worker, the AJ noted in his decision that the co-worker denied each of
appellant's allegations. Furthermore, the AJ noted that both appellant
and the co-worker had accused each other of assaults in the past, and
that many of appellant's accusations were unsubstantiated without proof.
In sum, the AJ found that he was unable to determine who was lying and
who was telling the truth about the accusations, but that the evidence
revealed that appellant's gender and/or age had no bearing on the matters.
In sum, the AJ found that there was no reasonable cause to believe that
appellant was treated differently because of her gender and/or age when
she was allegedly harassed by her supervisor and co-worker. On January
15, 1997, the agency issued a final decision adopting the AJ's finding
of no discrimination.
On appeal, appellant, though her attorney, restates arguments previously
made at the hearing. Furthermore, appellant argues that the AJ erred when
he disregarded the testimony of three female witnesses who testified as
to harassment by the supervisor and co-worker. The agency responds by
restating the position it took in its FAD, and requests that we affirm
its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Upon review of the transcripts,
including the testimony of appellant's witnesses, we find that appellant
failed to establish by a preponderance of the evidence that any of the
alleged harassment was based on appellant's gender and/or age. We note
that two of appellant's own witnesses did not definitively believe
that the harassment was based on appellant's gender. As we find
insufficient persuasive evidence in the record which would demonstrate
that appellant was harassed because of her gender and/or age, we find
no reason to disturb the AJ's finding of no discrimination. Therefore,
after a careful review of the record, including appellant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations