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
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0120072559
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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