Rose Simpson, Complainant,v.Robert M. Gates, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity CommissionJun 9, 2009
0120072559 (E.E.O.C. Jun. 9, 2009)

0120072559

06-09-2009

Rose Simpson, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Contract Management Agency), Agency.


Rose Simpson,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense

(Defense Contract Management Agency),

Agency.

Appeal No. 0120072559

Hearing No. 520200600348X

Agency No. YS041010

DECISION

On May 5, 2007, complainant filed an appeal from the agency's April

11, 2007 final order concerning her equal employment opportunity (EEO)

complaints alleging 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(a). For the following reasons, the Commission

AFFIRMS the agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant

worked as a Contract Administrator at the agency's Garden City, New

York facility.

On May 19, 2004, June 4, 2004, and October 26, 2004, complainant filed

formal complaints alleging discrimination on the bases of race (Black),

national origin (African-American), sex (female), color (light skinned),

age (52), and reprisal for prior protected EEO activity when:

1. on March 6 and June 3, 2003, her supervisor gave her a 7B leave

counseling card;

2. on June 24, 2003, her supervisor restricted her sick and annual

leave;

3. on March 18, 2004, her supervisor suspended her for telephone misuse;

4. on April 7, her supervisor again restricted her sick and annual leave

usage;

5. on May 20, her supervisor denied her administrative leave to

participate in an Employee Assistance Program (EAP); and

6. on September 29, her supervisor disapproved her request to work

part-time at home (telework).

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing, which was held December 19, 2006. Thereafter,

the AJ issued a decision in favor of the agency on March 23, 2007.

In his decision, the AJ found that complainant failed to establish

that she was treated differently than any similarly-situated individual

outside of her protected classes. Further, the AJ found that the agency

articulated legitimate, nondiscriminatory reasons for its actions

which complainant failed to prove were a pretext for discrimination

or retaliation. Specifically, the AJ found that complainant was

placed on leave restriction and counseled due to attendance problems.

The AJ further found that she was issued the suspension for misuse

of a government phone, and denied administrative leave because her

participation in EAP was not requested by the agency.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant raises her prior EEO complaints and reiterates

arguments she raised during the hearing. The agency did not reply to

complainant's appeal.

ANALYSIS AND FINDINGS

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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held. An AJ's

credibility determination based on the demeanor of a witness or on the

tone of voice of a witness will be accepted unless documents or other

objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence,

that the agency's explanation is pretextual. Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

After a careful review of the record, we find that there is substantial

evidence in the record to support the AJ's finding of no discrimination.

We find that complainant failed to present sufficient evidence to raise an

inference of discrimination because she failed to identify anyone outside

of her protected classes who was treated more favorably under similar

circumstances. Moreover, she failed to present sufficient evidence

that would prove, by a preponderance of the evidence, that the agency's

reasons for its actions were a pretext for discrimination. Rather, the

preponderant evidence supports the finding that complainant was counseled

for attendance problems, and suspended for misuse of the government phone.

Further, she was denied telework because she did not have the appropriate

equipment, and was denied administrative leave for EAP because the EAP

request was not made by the agency. Complainant failed to establish

that anyone else was not so disciplined under similar circumstances.

In sum, we find that complainant failed to establish she was subjected

to unlawful discrimination or retaliation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the final

agency order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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 9, 2009

Date

2

0120072559

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120072559

6

0120072559