01970621
12-02-1998
Lyn Jensen, Appellant, William S. Cohen, Secretary, U.S. Department of Defense (Defense Logistics Agency), Agency.
Lyn Jensen v. U.S. Department of Defense
01970621
December 2, 1998
Lyn Jensen, )
Appellant, )
)
) Appeal No. 01970621
) Agency No. XQ-95-008
)
)
William S. Cohen, )
Secretary, )
U.S. Department of Defense )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC or Commission) from the final decision of the agency
concerning her allegation that the agency discriminated against her in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and � 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq. She alleged that she was discriminated
against based on sex (female) and physical disability (Epstein-Barr
Virus) when, beginning in August 1994, and including February 3, 1995,
she was allegedly subjected to an intimidating and hostile environment
of profanity and verbal sexual harassment by her co-workers. She also
alleged that when she brought this to the attention to her supervisor
on September 15, 1994, she was retaliated against in that she was
given low-level clerical work and, in January 1995, removed as the
Field Assistant Federal Women Program Manager (voluntary position) for
her activity. This appeal is accepted by the Commission in accordance
with the provisions of EEOC Order No. 960.001.
The record reveals that appellant filed this formal complaint on March 13,
1995, alleging that the agency discriminated against her as referenced
above. The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) administrative
judge (AJ).
The hearing was conducted on April 25, 1996, and the AJ issued her
Recommended Decision (RD) on July 16, 1996. First, the AJ found that
appellant failed to establish a prima facie case of sex discrimination,
concluding that she failed to establish that the alleged profanity and
verbal sexual harassment took place as described. The AJ also found that
she failed to establish a prima facie case based on reprisal with respect
to the alleged assignment of lower-level duties in that these lower-level
duties were assigned prior to appellant's complaint; therefore, they
could not have been in retaliation for her protected activity. Moreover,
the AJ did not find any credible evidence that appellant's work changed
to any measurable degree after her complaints. However, the AJ did find
appellant established a prima facie case of reprisal with respect to her
removal as Manager of the Field Assistant Federal Women Program. She
further found that the agency articulated legitimate, nondiscriminatory
reasons for removing appellant from the voluntary position. Specifically,
the Commander of the Defense Contract Management District West (DCMDW)
testified that it was not because he was dissatisfied with appellant's
performance in the voluntary position that she was removed. Rather,
he stated that he was always looking for new volunteers and he thought
it was good for the organization "to change faces once in a while."
Thus, he gave the voluntary position to appellant's co-worker who had
expressed an interest in the position in order to give someone else
a chance. Furthermore, a former EEO Representative testified that it
was the agency's policy not to have one individual in a special emphasis
position for a long period of time, so if there were volunteers for the
position it would be rotated. She stated that had no one else wanted
the position, the incumbent (appellant) would not have been removed.
Finally, the AJ found that appellant failed to establish that the agency's
reasons for removing appellant as voluntary Manager of the program was
pretext for discrimination.
Although the AJ did find appellant to be a qualified individual with a
disability within the meaning of the Rehabilitation Act, she did not find
that the agency failed in its obligation to reasonably accommodate her.
The AJ noted that an employer is only obligated to reasonably accommodate
the known limitations of an employee and is under no duty to guess
at the symptoms of a disability which have no outward manifestations,
such as appellant's Epstein-Barr Virus. Appellant conceded that her
doctor never provided the agency with any information regarding how
the virus affects her, or what, if any accommodation she might require.
Despite this lack of documentation, appellant's supervisor nevertheless
moved appellant to a quieter location in response to this complaint.
On September 24, 1996, the agency issued a final decision adopting the
AJ's recommended finding of no discrimination. It is from this decision
that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies, and laws.
The Commission discerns no basis to disturb the AJ's finding of no
discrimination. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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, ad
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. � l6l4.604(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 this 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 this 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 this 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. Both the request and the civil action must
be Filing a request for an attorney does not extend your time in which
to file a civil action. filed within the time limits as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
Dec 2, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations