01A33419
08-25-2004
Sarah Gaston, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Sarah Gaston v. Department of Defense (Defense Commissary Agency)
01A33419
August 25, 2004
.
Sarah Gaston,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A33419
Agency No. DECWP200020035
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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. For the following reasons, the Commission AFFIRMS the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Sales Store Checker, GS-2091-03,<1> at the Naval Air Station North
Island Commissary located in San Diego, California. Complainant sought
EEO counseling and subsequently filed a formal complaint on April 8,
2002, alleging that she was discriminated against on the bases of race
(Hispanic), national origin (Mexican-American), color (brown), sex
(female), disability, and age (D.O.B. 06/22/60), and in reprisal for
prior EEO activity [arising under all three statutes] when:
(1) Management failed to provide her with reasonable accommodations;<2>
Complainant was the victim of non-sexual harassment by two management
officials;<3>
Complainant was the victim of disparate treatment;<4>
Complainant was the victim of reprisal;<5>
On June 6, 2002, complainant was advised by a manager (M1) that she
would never get a chair.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency initially concluded that complainant was not an
individual with a disability, pursuant to the Rehabilitation Act, noting
that complainant testified that her physical condition did not affect
her ability to perform any major life activity. The FAD further found
that complainant was granted the accommodations she requested; namely,
she was given a stool to sit on while waiting for customers, however,
she chose not to use it. Additionally, complainant was assigned to
the morning shift, per her request, effective July 14, 2002. The FAD
further found no evidence of discriminatory or retaliatory disparate
treatment or hostile work environment.
Complainant makes no new arguments on appeal. The agency requests that we
affirm its FAD. As an initial matter we note that, as this is an appeal
from a FAD issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b),
the agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a).
Disparate Treatment
To prevail in her disparate treatment claims, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally
establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with
in this case, however, since the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, complainant contends that she was subjected to disparate treatment
when her co-workers were permitted to take longer breaks than she was,
and they were permitted to work the earlier shift. Additionally,
complainant contends that other intermittent employees were given more
work than she was. Assuming arguendo that complainant is an individual
with a disability and that she otherwise established a prima facie case
of discrimination on the alleged bases, she has not established that
the agency's actions were motivated by discriminatory animus due to
complainant's membership in a protected class.
As to the allegation of a hostile work environment, complainant's
managers deny that they yelled at her or made the alleged
harassing/retaliatory comments, and complainant has failed to provide
evidence tending to corroborate her allegations. Therefore, we cannot
conclude that she was subjected to discriminatory or retaliatory
harassment. We note that complainant herself asserted that the staff
meeting (during which M1 allegedly made a retaliatory statement) probably
occurred before she had filed her informal complaint. See Report of
Investigation (ROI), Investigative Testimony, at 44. This tends to
indicate that management did not retaliate against her on that occasion.
We now turn to addressing complainant's contention that she was denied
a reasonable accommodation. Assuming arguendo that complainant is an
individual with a disability pursuant to the Rehabilitation Act, the
record evidence indicates that complainant was permitted to change her
schedule, and that she was provided a stool for resting between customers.
Complainant also asserts that even without the stool, she was able
to perform the duties of her job. See ROI, Investigative Testimony,
at 17. Therefore, we cannot conclude that the agency failed to provide
complainant with a reasonable accommodation within the meaning of the
Rehabilitation Act.
After a careful review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
August 25, 2004
__________________
Date
1 The record indicates that complainant was an intermittent employee
who was assigned work as needed.
2 The record indicates that complainant requested an earlier shift,
and the use of a chair while waiting for customers at the checkout line.
3 Complainant contends that M1 yelled at her and told her he was tired
of her filing EEO complaints.
4 Complainant contends that her co-workers were permitted to take longer
breaks than she was, and they were permitted to work the earlier shift.
Additionally, complainant contends that other intermittent employees
were given more work than she was.
5 Complainant contends that she was subjected to reprisal for her prior
EEO activity in the following ways: during a staff meeting, M1 stated that
employees needed to talk to him before they filed any kind of complaint,
and looked right at complainant; she was given a small stool instead of a
chair to sit on; M1 yelled at her �Here is the chair that you have wanted
for so long!�; complainant was assigned to the busiest checkout lines;
and, on March 22, 2002, M1 yelled at her and told her he was tired of
her filing EEO complaints.