0120100764
06-04-2010
Shelley Wykoff, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Shelley Wykoff,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120100764
Hearing No. 530-2008-00283X
Agency No. P20060156
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 2, 2009 final order 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant, a senior officer, GS-7, at the Federal Correctional
Institution McKean in Bradford, Pennsylvania, alleged that the agency
discriminated against her on the bases of sex (female), disability,
and reprisal for prior protected EEO activity under Title VII when:
1) she was not provided a temporary alternate duty assignment within
the scope of her medical restrictions, and 2) in February of 2007, she
received a W-2 Form for tax year 2006 in which her leave without pay
(LWOP) was deliberately miscalculated.1
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 within the time frame provided in 29 C.F.R. � 1614.108(f).
On December 2, 2009, the AJ issued a summary decision finding no
discrimination. The AJ found the following facts were established in the
record. Complainant experienced complications from a hysterectomy which
resulted in a longer than usual recovery period. She returned to work in
April 2005 with a number of medical restrictions. Complainant requested
a light duty assignment upon her return to work, specifically working
in the telephone monitoring room. Her supervisor denied her request
to work in the telephone monitoring room, but offered her a light duty
assignment in the front lobby. Complainant declined the offer because
she believed it would violate one of her medical restrictions, namely no
inmate contact. Management told complainant there was no work available
for her without at least some inmate contact, noting that her request
to work in the telephone monitoring room also involved inmate contact.
When complainant's physician would not remove the restriction against
inmate contact, complainant remained off work until June 1, 2005,
when she returned without restrictions. Agency management authorized
complainant to receive donated leave for this period, and she received
approximately 120 hours of donated leave.
With regard to her second claim, the AJ found that in January 2006,
complainant received a W-2 form from the National Finance Center that
included restored wages related to LWOP (leave without pay) from 2005.
Complainant asserted that two years were improperly "lumped" together
and the W-2 form was mishandled and the result of "sheer ignorance" on
the part of human resources personnel who did not know how to handle a
situation such as hers.
In reaching the decision in favor of the agency, the AJ determined that
even if complainant could establish a prima facie case, the agency had
articulated legitimate, nondiscriminatory reasons for its actions. The AJ
stated that complainant was offered a light duty assignment which she
declined. Regarding the second claim, the AJ found that record does not
support complainant's assertion that her 2006 W-2 Form was miscalculated.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), 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).
She must generally establish a prima facie case by demonstrating that
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). 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).
On appeal, complainant mainly asserts that the AJ erred in issuing
a decision without a hearing. However, beyond her bare assertions,
complainant has not produced evidence to show that the agency's
explanations are a pretext for discrimination or identified material
facts in dispute which could alter the adjudication of her claims.
After a 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 order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 4, 2010
__________________
Date
1 The agency dismissed several other claims filed as amendments to
the complaint as untimely filed and/or failure to state a claim.
Complainant did not contest the dismissal during the hearing process,
resulting in the Administrative Judge determining that the opportunity
to have the dismissal reviewed was deemed waived.
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0120100764
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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