01973750
01-27-2000
Ruth N. Wilson, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Ruth N. Wilson v. Department of the Navy
01973750
January 27, 2000
Ruth N. Wilson, )
Complainant, ) Appeal No. 01973750
)
v. ) Agency Nos. DON-93-62980-009
) DON-94-62980-003
Richard J. Danzig, ) DON-94-62980-014
Secretary, )
Department of the Navy, ) Hearing Nos. 100-94-8016X
Agency. ) 100-94-8017X
) 100-95-7468X
______________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision
of the Department of the Navy (agency) concerning her complaint of
unlawful employment discrimination, in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 701 et seq.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
Complainant's claim of discrimination is based upon her sex (female),
race (Black), mental disability (depression and adjustment disorder),
and reprisal (prior EEO activity) when:
(1) she was suspended for three days from June 16-18, 1993 (race, sex,
disability, reprisal);
(2) she was referred for counseling, by letter dated July 16, 1993,
for disrespectful and disruptive behavior (race and sex);
(3) on August 5, 1993, she was issued a notice that her position
(Computer Programmer Analyst, GS-334-12) was slated for abolishment
in March, 1994 (reprisal);
(4) on August 13, 1993, she was reported to the Federal Protective
Service (FPS) for possessing a weapon and her belongings were searched
(reprisal);
(5) she was suspended for ten days from September 21-30, 1993 (race,
sex, disability, reprisal);
(6) she was subjected to allegations of forgery with regards to her
parking permit application (race, reprisal, disability);
(7) she was rated "Minimally Successful" (Level 2) for the rating period
November 1, 1992 through September 30, 1993 (race, reprisal, disability);
(8) she was issued a Letter of Caution on November 2, 1993, which placed
restrictions on her leave usage and failed to accommodate her disability
(race, sex, disability, reprisal);
(9) on December 1, 1993, she became aware that two non-minority women
were provided with upgraded computers and software, and she was not
despite numerous requests (race); and
(10) on June 3, 1994, she received a copy of her Worker's Compensation
claim and discovered that her supervisor had purportedly falsified facts
regarding the claim with the intent to deprive her of compensation
benefits for disability sustained in the performance of duty (race,
disability, reprisal).
Complainant filed formal complaints on October 19, 1993, February 24,
1994, and September 8, 1994, alleging discrimination as referenced
above. Complainant's complaints were accepted for processing.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On October 3, 1995, the AJ issued
a notice of intent to render a decision without a hearing pursuant
to 29 C.F.R. �1614.109 (e). Both parties submitted responses to the
AJ's notice. Thereafter, on April 26, 1996, the AJ rendered an order of
partial summary judgment and recommended the dismissal of allegations 1,
2, 3, 5, 6, 9, and 10. The AJ found that a genuine dispute of material
facts existed with respect to allegations 4, 7, and 8 and determined that
a hearing was necessary with respect to those allegations. A hearing
took place on July 17, October 8, and November 1, 1996. Subsequent to
the hearing, but before the AJ issued his recommended decision on the
merits of the remaining allegations, complainant filed a civil action
in United States District Court for the Eastern District of Virginia.
Thereafter, the AJ remanded the remaining allegations (4, 7, and 8)
to the agency for dismissal in accordance with 29 C.F.R. � 1614.107(c).
The agency subsequently adopted the AJ's recommendations. It is this
agency decision which the complainant now appeals.
Complainant started in the data quality and assurance branch, Bureau of
Naval Personnel ("BUPERS") as a Computer Programmer Analyst (GS-334-12)
in March, 1991. On April 2, 1993, complainant's supervisor at the time
(RO1) gave complainant a letter of counseling regarding "unacceptable
conduct" and referred her to the employee counseling service (ECS).
Complainant had given gifts and notes to male staff members and sent
e-mail suggestive of a personal relationship to the office director (OD)
who was complainant's third-level supervisor at the time. In addition,
complainant had called OD at home on a number of occasions. Complainant
also had given OD anonymous gifts of candy, cards, pencils and drawings.
Complainant was suspended, without pay, from June 16-18, 1993, on
the grounds that her above actions constituted unacceptable conduct.
Complainant was also referred to ECS on July 16, 1993. Complainant
refused to attend a counseling appointment.
By notice dated July 30, 1993, received by complainant on August 5,
1993, the Deputy Chief of Naval Personnel (DC) informed complainant that
her position was slated for abolishment on March 31, 1994 as part of
fiscal year (FY) end reductions for BUPERS. The notice indicated that
every effort would be made to reassign complainant to a vacant position.
Complainant was one of 41 persons whose positions were eliminated during
FY 1994 and who received the July 30, 1993 notice.<2>
On August 13, 1993, complainant's fourth-level supervisor (RO4), notified
the Defense Protective Service (DPS) of the possibility that complainant
was carrying a weapon. In her statement to the DPS complainant speculated
that the allegation was based on a conversation that morning in which
she discussed her hobby of gun target practice, and locations for target
practice. A co-worker told RO4 that another co-worker witnessed a gun
in complainant's purse. RO4 testified that a co-worker told him that
another co-worker had seen a gun in complainant's purse.
Complainant was suspended from work and pay from September, 21-30,
1993 for engaging in the same behavior for which she had previously
been suspended. Complainant continued to harass OD with unsolicited
calls and gifts.
In 1993, the agency instituted a program to restrict parking permits to
those residing outside the immediate commuting area. On November 3,
1993, complainant visited the administrative office to determine why
she had not received a renewed permit and requested a copy of the permit
application she had submitted. Complainant then concluded that someone
had forged her application because it was dated October 17, 1993, while
she had submitted it on October 7, 1993. Complainant submitted another
application on November 3, 1993, and received a parking permit, because
she met the criteria for receiving a permit.
On November 2, 1993, complainant received a "minimally successful"
appraisal for the rating period from November 1, 1992 through September
30, 1993. According to the rating official, complainant failed to
properly brief her supervisors on assignments despite numerous requests
over several months that she do so. In addition, complainant minimally
communicated with her supervisors.
On November 2, 1993, complainant's supervisor gave her a letter of
caution placing restrictions on her use of leave. From March 21, 1993 to
October 2, 1993, complainant used 136 hours of annual leave, 144 hours
of sick leave, and four hours of absence without office leave. Most of
complainant's leave was unscheduled. Her supervisor testified that he
had counseled complainant about her use of leave but the situation had
not improved. The record reveals that complainant used the largest amount
of sick leave in comparison to other employees. In or about December,
1993, despite complainant's repeated requests for upgraded software and
computer equipment, she did not receive any new equipment. On December
8, 1993, the Deputy Assistant Chief of Naval Personnel for Information
Systems Management placed complainant on indefinite administrative leave
because she had made threats to other employees.
On June 3, 1994, complainant received a copy of her workers' compensation
claim and allegedly discovered that her supervisor had falsified facts
in respect to the claim, with the intent to deprive complainant of
compensation benefits for a disability sustained while working. Some of
the alleged false facts included: (1) a statement by her supervisor that
he did not know the name and address of the physician first providing
medical care; (2) the statement by her supervisor that the medical reports
did not show complainant being disabled for work; and (3) a statement
by her supervisor that complainant never reported her medical condition.
AJ'S FINDINGS AND CONCLUSIONS
Issues 1 and 5 Regarding Suspension
The AJ concluded that summary judgment was appropriate with respect to
Issues 1 and 5. When viewing the record in the light most favorable
to the complainant, the AJ found that complainant failed to establish a
prima facie case of race, sex, disability, or reprisal discrimination.
Specifically, the AJ noted that there was no dispute regarding whether
complainant had sent unwanted personal e-mail and notes and failed
to stop the behavior. Furthermore, complainant failed to cite a
similarly situated individual who received more favorable treatment
than complainant. Lastly, the AJ noted that even assuming complainant
had established a prima facie case of discrimination, she offered no
evidence to demonstrate that the agency's justification for its action
is a pretext for discrimination.
Issue 2 Regarding the Referral to Counseling on July 16, 1993
The AJ found that this allegation fails to state a claim upon which relief
can be granted. Specifically, the AJ found that complainant failed
to demonstrate that she has suffered personal harm from the referral.
The AJ noted that the referral was not disciplinary or made a part
of complainant's personnel file, and complainant was ultimately not
required to attend counseling. Moreover, there was no indication that
complainant's future employment status would be affected.
Issue 3 Regarding Notification of the Abolishment of Complainant's
Position
The AJ dismissed this allegation pursuant to EEOC Regulations requiring
dismissal of complaints that allege proposed personnel actions. See 29
C.F.R. � 1614.107(e). The AJ also noted that complainant did not provide
any evidence of discriminatory animus. Complainant was one of 41 persons
whose positions were eliminated during FY 1994. Lastly, the AJ noted
that even if a prima facie case of discrimination was established,
complainant offered no evidence that the legitimate nondiscriminatory
reason (agency downsizing) was pretext for discrimination.
Issue 4 Regarding Report to the Defense Protective Service
The AJ found that Issue 4 contained genuine disputed issues of material
fact and credibility that required a hearing. The record reveals that
subsequent to the hearing, but before the AJ issued his recommended
decision on the merits, complainant filed a civil action and raised in
her complaint facts related to this allegation. Accordingly, the AJ
remanded this issue to the agency for dismissal.
Issue 6 Regarding Alleged Forged Parking Permit Application
The AJ recommended dismissal of this allegation for failure to state a
claim, upon which relief may be granted. See 29 C.F.R. � 1614.103(a).
The AJ noted that complainant submitted an application and received
a permit. Furthermore, complainant failed to provide evidence that she
suffered an injury from the alleged forgery. Lastly, complainant failed
to submit evidence of a forgery or discriminatory animus.
Issue 7 Regarding Annual Performance Rating of Minimally Successful
The AJ found that Issue 7 contained genuine disputed issues of material
fact and credibility that required a hearing. However, as set forth
above, subsequent to the filing of complainant's civil action, the AJ
remanded this issue to the agency for dismissal.
Issue 8 Regarding November 2, 1993 Letter of Caution
The AJ found that Issue 8 contained genuine disputed issues of material
fact and credibility that required a hearing. However, as set forth
above, subsequent to the filing of complainant's civil action, the AJ
remanded this issue to the agency for dismissal.
Issue 9 Regarding Denial of Computer Upgrade
The AJ determined that complainant failed to present sufficient evidence
of a prima facie case of discrimination. Even assuming a prima facie
case was established, complainant failed to present any evidence that
the agency's legitimate non-discriminatory reason for its employment
action was a pretext for discrimination.
Issue 10 Regarding Worker's Compensation Alleged Falsification
The AJ concluded that Issue 10 failed to state a claim and recommended
dismissal. First, the AJ found that the claim constituted a collateral
attack on the Office of Workers Compensation Program's (OWCP) decision
to deny complainant's compensation. Second, the AJ found complainant
not aggrieved because she appealed the initial denial of her claim, and
the OWCP has not yet ruled on her appeal. Moreover, assuming complainant
was aggrieved, the AJ found no evidence that S2 intentionally made false
statements to OWCP.
CONCLUSION
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that, in all material respects, the AJ accurately set forth the relevant
facts and properly analyzed the case using the appropriate regulations,
policies, and laws. We find that allegations 1, 2, 3, 5, 6, 9, and 10
were properly recommended for dismissal by the AJ because complainant
has not raised genuine issues of disputed facts which could support a
finding of discrimination. We also agree with the AJ's determination
that the remaining allegations (4, 7, and 8) required dismissal in light
of the civil action filed by complainant which raises facts related to
these allegations. We further note that complainant failed to raise
any contentions on appeal. Accordingly, we discern no basis upon which
to disturb the AJ's finding of no discrimination and hereby AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
1/27/00
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999) where applicable, in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at WWW.EEOC.GOV.
2 No one whose position was eliminated had his employment terminated,
including complainant.