Ramona Estes, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 14, 2001
01987070 (E.E.O.C. Jun. 14, 2001)

01987070

06-14-2001

Ramona Estes, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Ramona Estes v. Department of the Army

01987070

June 14, 2001

.

Ramona Estes,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01987070

Agency Nos. BHFRFO9602G0190; BHFRO9609G1180

Hearing Nos. 360-97-8272X; 360-97-8066X

DECISION

Complainant timely initiated an appeal from the agency's final decision

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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleges she was discriminated against on the bases of

national origin (Hispanic), sex (female), age (49), and reprisal for

previous EEO activity when:

(1) on February 20, 1996 she received a counseling statement from

a supervisor;

on January 17 and 18, 1996, she was charged other than Worker's

Compensation leave;

in February 1996, her supervisor reminded her twice that her position

duties would be transferred to other offices;

on February 16, 1996, a supervisor changed her work hours from a

compressed 5/4/9 schedule to an 8 hour per day, 5 day per week schedule;

on July 3, 1996, she was issued a performance counseling memorandum;

on June 21, 1996, a departing soldier was told she would kiss him;

she was assigned clerical duties beginning in January of 1996; and

on July 19, 1996, a security officer wrote a memorandum detailing

complainant's failure to advise the new security manager, and her

supervisor, on how to do his job.

For the following reasons, the Commission AFFIRMS the agency's final

decision.

The record reveals that complainant, a Security Specialist at the agency's

Fort Sam Houston facility, filed a formal EEO complaint with the agency

on April 5, 1996, and October 12, 1996, alleging that the agency had

discriminated against her as referenced above. At the conclusion of

the investigations, complainant received a copy of the investigative

reports and requested a hearing before an EEOC Administrative Judge

(AJ). The complaints were consolidated into one and following a hearing,

the AJ issued a decision finding no discrimination.

The AJ concluded that complainant established a prima facie case of

discrimination based on sex, race, national origin, age and reprisal.

The AJ further concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions. The AJ found that, with

respect to the counseling statement, there was insufficient evidence to

prove that discriminatory or retaliatory motives motivated her supervisor.

With regard to the denial of continuation of pay, the AJ concluded that

complainant failed to provide the required information, namely medical

documentation, necessary to support her request to receive Worker's

Compensation. The AJ further found that complainant's supervisor was

merely �keeping her informed� when he twice advised her on the transfer

of duties. In reference to the performance counseling memorandum,

the AJ stated that the supervisors' actions were a direct result of

complainant's non-cooperative behavior. The AJ further found that the

remark regarding complainant kissing a departing soldier did not rise

to the level of sexual harassment prohibited by Title VII. In relation

to the assignment of clerical duties, the AJ concluded that the office

where complainant worked required each individual to take on some clerical

tasks, including complainant. Finally, the AJ found that the memorandum

detailing complainant's failure to advise her supervisor on how to handle

a security breach was not motivated by discriminatory animus.

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 and/or retaliation. In reaching this conclusion,

the AJ found that in each instance, the agency's proffered reasons

were credible. The AJ further found that complainant had significant

frustrations with the reorganization of the agency and her role within

the agency, and that this frustration, and not discriminatory actions by

the agency, was the root cause of most of complainant's problems at work.

The agency's final decision implemented the AJ's decision. On appeal,

complainant takes exception to the findings of credibility made by the AJ

in her recommended decision, and argues that the AJ erred in evaluating

the record and in determining that pretext had not been demonstrated

by complainant. In response, the agency restates the position it took

in its FAD, and requests that we affirm its final decision.

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, race, age or national

origin. Moreover, we find no reason to second guess the credibility

determinations of the AJ. We therefore discern no basis to disturb the

AJ's decision. Thus, 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 decision.

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

June 14, 2001

__________________

Date