Thompsene I. Abukar, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01973963 (E.E.O.C. Oct. 14, 1999)

01973963

10-14-1999

Thompsene I. Abukar, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Thompsene I. Abukar v. Department of the Navy

01973963

October 14, 1999

Thompsene I. Abukar, )

Appellant, )

)

v. ) Appeal No. 01973963

) Agency No. DON 94-62758-001

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

On April 16, 1997, Thompsene I. Abukar (hereinafter referred to as

appellant) filed a timely appeal from the January 23, 1996, final

decision of the Department of the Navy (hereinafter referred to as the

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 Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. �621 et seq. Appellant received the

final agency decision on March 18, 1997. Accordingly, the appeal is

timely filed (see 29 C.F.R. �1614.402(a)) and is accepted in accordance

with EEOC Order No. 960, as amended. For the reasons that follow,

the agency's decision is AFFIRMED.

The issue presented in this appeal is whether the appellant has proven,

by a preponderance of the evidence, that the agency discriminated against

her on the bases of race/color (black), sex, and age (DOB 2-16-47)

when she was reassigned to Texas on November 19, 1993.

Appellant filed her formal complaint on July 14, 1994. Following an

investigation, she was advised of her right to request a hearing before an

EEOC Administrative Judge or an immediate final agency decision (FAD),

but she did not respond to the notice. The agency issued its FAD,

finding no discrimination.

Appellant taught English as a Second Language (ESL) at Lackland AFB

(Texas) and was assigned in August 1993 on temporary duty to the agency's

Ship Repair Facility in Japan to teach English to local employees.

On November 19, 1993, she was directed to return to Texas on Monday,

November 22, 1993. The agency concluded that concerns about appellant's

health and safety required her reassignment. In addition, her actions

had placed the health and safety of others in danger and had unduly

burdened the administrative staff, drawing time and attention away from

the program's classroom activities.

Upon her arrival in Japan, appellant complained about mites in her

room and classroom. Although no mites were discovered at any time, she

was reassigned to other rooms and her rooms were sprayed. In order to

combat the mites, however, appellant purchased and used at least five

types of unauthorized insecticides, and, to avoid detection in using

the insecticides, she covered her smoke alarm with plastic. Finally,

because of her arthritis, appellant took medications which affected

her alertness and made her sufficiently drowsy that she was excused

from classes. Although appellant claimed she was treated differently,

none of appellant's co-workers supported her claim. The agency also

explained that it attempted to ease her return to Texas, offering

financial and other assistance to her.

In her appeal statement, appellant contended that the agency wanted to

undermine her career. She disputed some minor facts in the agency's FAD,

alleged that her reassignment was in retaliation for unidentified events

in 1991 during a previous assignment to Japan when she was also exposed

to mites, and that the agency failed to assist her to combat the mites

upon her return.

Generally, discrimination claims are examined under the tripartite

analysis first enunciated in McDonnell Douglas Corporation v. Green,

411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F.2d 1003

(1st Cir. 1979). Appellant must first establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The agency offers rebuttal to appellant's inference

of discrimination by articulating a legitimate, nondiscriminatory reason

for its action(s). Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); see U.S. Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has met its

burden, the complainant bears the ultimate burden to persuade the fact

finder by a preponderance of the evidence that the reasons offered by

the agency were not the true reasons for its actions but rather were

a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509

U.S. 502 (1993). Under the ADEA, the appellant must show that her age was

a determining factor in the agency's decision, that is, considerations of

age made a difference in the agency's selection decision. Hazen Paper

Company v. Biggins, 507 U.S. 604, 610 (1993) (age had "a role in the

process and a determinative influence on the outcome").

The agency explained that appellant was returned to her assignment

because of concerns for her health and safety, the health and safety

of others, and the administrative burden on its ESL program. Also, the

agency contended that it sought to smooth her departure in several ways,

both monetary and logistically. We find that the agency articulated

legitimate, nondiscriminatory reasons for its actions. In response,

appellant failed to demonstrate, nor does the record show, that the

agency's reasons for its actions were not its true reasons or based on

prohibited considerations. Appellant's appeal repeats her assertions

and describes events from her previous tour to Japan.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Oct. 14, 1999

DATE Carlton Hadden, Acting Director

Office of Federal Operations