0120092557
09-29-2009
Shelia D. Bogan-Walker, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Shelia D. Bogan-Walker,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092557
Hearing No. 410200700053X
Agency No. ARBENNING06APR1450
DECISION
On May 7, 2009, complainant filed an appeal from the agency's August 24,
2007 final decision concerning her equal employment opportunity (EEO)
complaint 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. The record indicates that complainant did not receive
the decision in 2007. Complainant contacted the agency regarding
the complaint. The agency discovered that complainant did not receive
its decision. Therefore, the agency issued another copy of its final
decision on March 27, 2009. As such, the appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission affirms the agency's final decision.
ISSUES PRESENTED
The issue presented herein is whether the agency's final decision properly
determined that complainant failed to show that her 14-day suspension
was in retaliation for protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Medical Support Assistant at the agency's Patient Administration
Division at Martin Army Community Hospital facility in Fort Benning,
Georgia. On April 12, 2006, complainant filed an EEO complaint alleging
that she was discriminated against on the basis of reprisal for prior
protected EEO activity when, effective March 5, 2006, complainant was
issued a 14-day suspension on the charges of absence without leave
and disrespect to her supervisor, Staff Sergeant. With respect to
the absence without leave charge, the evidence of record shows that
complainant was scheduled, for about a month, to work on January 4 and
5, 2006, from 7:00 a.m. to 3:30 p.m. However, she called in sick on
January 4 about two hours and 45 minutes after her shift started, and
was three and one-half hours late on January 5. Complainant contended
that she thought she was scheduled to work at 11:00 a.m. on these dates,
but the written schedule submitted into evidence indicated otherwise.
The disrespect charge apparently stemmed from complainant calling in sick
on New Year's Eve. A substitute was obtained for complainant. Later,
she called in and left a message that she was coming to work after all.
The Staff Sergeant called to stop her from coming in because a replacement
was there, but could not reach her. When complainant arrived at work,
the Staff Sergeant called her to tell her to go home and he asserted she
hung up on him several times. He also alleged that when he went to talk
to her face-to-face, she argued with him, bumped into him on purpose,
and told him that he was sexually harassing her and that she was calling
the MPs. She also accused him of drinking.1
As a result of these events, the Staff Sergeant proposed complainant's
suspension on February 2, 2006. The Staff Sergeant stated that he was
not aware of complainant's prior EEO activity at the time he proposed
her suspension. When complainant did not respond to the proposal, the
Lieutenant Colonel decided to suspend complainant, effective March 5,
2006, as proposed.
Complainant was subsequently removed effective May 19, 2006, for battery
committed against a co-worker. Complainant filed a second complaint
on May 30, 2006, alleging unlawful retaliation when she was removed.
The complaints were consolidated and investigated.
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 requested
a hearing but the AJ denied the hearing request on the grounds that
complainant failed to prosecute her case. Specifically, the AJ noted that
complainant failed to appear for a May 8, 2007, pre-hearing conference.
In addition, complainant failed to provide the AJ with a phone number
to contact her nor did she provide reasons for missing the conference.
As such, the AJ remanded the complaint to the agency on May 30, 2007.
The AJ noted that the termination was a mixed case complaint and that the
suspension was not mixed. As such, the agency issued a final decision
pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she
was subjected to discrimination as alleged. The decision found
that complainant failed to show that the agency's legitimate,
non-discriminatory reasons were pretext for unlawful retaliation.
The agency provided complainant appeal rights to the Commission regarding
the suspension and rights to the Merit Systems Protection Board regarding
the removal action.
CONTENTIONS ON APPEAL
Complainant appealed without specific argument or comment regarding the
suspension. In support of her appeal, complainant provided documents
which were also within the agency's investigative file. The agency
requests that the Commission affirm its finding of no discrimination
regarding the suspension.
ANALYSIS AND FINDINGS
Termination
As an initial matter, we note that the only issue before the Commission
is the 14-day suspension. We note that complainant's complaint was
processed as a mixed case complaint in accordance with 29 C.F.R. �
1614.302, which provides that at the time the agency issues a final
decision, it must advise complainant of the right to appeal to the
Merit Systems Protection Board (MSPB), not EEOC. The agency properly
notified complainant of her right to appeal to the MSPB when it issued
its final decision regarding the removal action. Complainant has raised
no arguments on appeal why the removal action should be considered by
the Commission. Thus, complainant's appeal concerning her termination
shall not be considered within this decision.
AJ's Decision to Dismiss Hearing
We note that complainant did not specifically appeal the AJ's decision
to remand the complaint back to the agency for a decision on the merits.
In her Order of Dismissal, the AJ stated that complainant failed to appear
for a telephonic pre-hearing conference call. Specifically, the AJ stated
that the parties were made aware of the pre-hearing conference call and
were informed of the possibility of sanction if they failed to appear.
The AJ also asked for phone numbers for the parties. Complainant
failed to provide the AJ with a number to contact her on the day of
the conference. Complainant had previously provided two phone numbers.
The AJ called one of the numbers; however, complainant's mother answered
indicating that complainant did not reside there." The AJ issued a
notice to show cause on May 8, 2007. Complainant responded on May 16,
2007, indicating that her car had been in an accident. Therefore,
she did not have a car at the time of the telephonic conference call
and she had no phone at home to use. The AJ determined that although
complainant did not have her own car, she did not take any steps to
contact the AJ or the agency's representative either before or after
the pre-hearing conference. Upon review of the record, we find that
complainant failed to present sufficient evidence that the AJ abused
her discretion by dismissing the hearing request.
Fourteen-Day Suspension
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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). He
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).
Upon review of the record, we find the agency provided legitimate,
non-discriminatory reasons for the 14-day suspension. The record
establishes that complainant was absent without approved leave on the
dates in question. Further, based on issues regarding complainant's
attendance issues, complainant and the Staff Sergeant had an argument
which he believed to be disrespectful. Based on the incidents, the Staff
Sergeant asserted that he proposed the 14-day suspension. We further find
that complainant failed to show that management's articulated reasons
for the suspension were pretext for unlawful retaliation. As such,
we conclude that complainant has not established, by a preponderance of
the evidence, that she was subjected to unlawful retaliation when she
was issued a 14-day suspension.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision finding no discrimination.
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
September 29, 2009
__________________
Date
1 He responded by having the Emergency Room run a blood alcohol test on
him.
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2
0120092557
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092557