01973019
03-09-2000
Sue S. Whaley, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Sue S. Whaley v. Department of the Army
01973019
March 9, 2000
Sue S. Whaley, )
Complainant, )
)
v. ) Appeal No. 01973019
) Agency No. 9509F0290
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in retaliation for prior EEO activity in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant's claims of discrimination, as outlined by the agency,
are as follows: (1) her personal possessions were removed from her
office and shipped to her home; (2) she was denied "advance" annual
leave; (3) she was not allowed to close her office door; (4) she was
required to have a doctor's note in order to return to work; (5) she
was "stopped" by her supervisor from going to the orthopedic clinic;
(6) her supervisor restricted the amount of time she could spend at "CPO,
EEO and Occupational Health." The appeal is accepted in accordance with 64
Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the agency's decision is AFFIRMED.
BACKGROUND
The record reveals that during the relevant time period, complainant
was employed as a Risk Management Coordinator at the agency's Winn Army
Community Hospital in Fort Stewart, Georgia. In October 1994, complainant
filed an EEO complaint alleging that she had been discriminated against
by the agency in violation of Title VII.<2> According to complainant,
"as soon as" she filed the complaint, her supervisors began subjecting her
to a series of retaliatory actions, as outlined above. Believing herself
to be a victim of discrimination, complainant sought EEO counseling
and, subsequently, filed a second formal complaint on August 29, 1995.
The agency accepted the complaint for investigation. As part of
the investigation the agency conducted a fact-finding conference at
which witnesses, including complainant, testified under oath. At the
conclusion of the investigation, complainant was furnished with a copy
of the investigation report. She did not elect to exercise her right
to a hearing. Accordingly, the agency issued a FAD on the basis of the
investigative record.
The FAD found that complainant had established a prima facie case of
retaliation discrimination. It concluded, however, that complainant had
not proved discrimination because the agency had articulated legitimate,
nondiscriminatory reasons for its actions which complainant had failed
to rebut.
From the FAD, complainant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981), St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993), and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases)
the Commission finds that complainant failed to prove by a preponderance
of evidence that the agency's articulated reasons for its actions were
a pretext for discrimination.<3> We are persuaded that complainant's
allegations that the agency's actions were undertaken in retaliation
for her having engaged in protected EEO activity are based on nothing
more than her own speculation.
In reaching this conclusion, we note that complainant has adduced
no evidence to refute what appear to us to be straightforward and
reasonable explanations for the agency's actions. For example, the
agency explained that complainant was prohibited from going to the
orthopedic clinic because she had on previous occasions improperly<4>
obtained drug prescriptions from physicians employed in the clinic.
This was a legitimate, nondiscriminatory reason for the agency's action.
Complainant presents no evidence to refute it.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
3-9-00
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:
3-9-00
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.
2The bases of discrimination alleged in the October 1994 complaint do
not appear in the record.
3Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary where, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reason for its actions
was a pretext for discrimination. Id.; see also United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
4Complainant acknowledged at the fact-finding conference that she had
knowingly acted improperly in seeking and obtaining prescriptions from
agency physicians even though she, as a civilian, was not entitled to
receive medical treatment from those physicians.