Ruth N. Wilson, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 27, 2000
01973750 (E.E.O.C. Jan. 27, 2000)

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.