01A23355
12-16-2003
Louise A. Monzingo, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Louise A. Monzingo v. Department of the Army
01A23355
December 16, 20003
.
Louise A. Monzingo,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A23355
Agency No. BKEK0005A0140
Hearing No. 310-99-5665X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant has approximately twenty-six
years of experience in various positions with the agency at Fort Sill,
Oklahoma since she began her employment in 1976. From 1977 through 1998,
complainant worked at the Training Service Center, Directorate of Plans,
Training and Mobilization (DPTM) division. In 1998, complainant was
subjected to a reduction in force which resulted in her being downgraded
to a GS-5. In connection with the downgrade she was transferred to the
Fire Support Office Engineering Division, Communications/Electronics
Software Engineering Center (CECOM). Complainant filed two formal EEO
complaints that were consolidated by the agency.
In her first complaint, filed on July 1, 1997 (referred to as a DPTM
claim), complainant alleged that she was discriminated against in
retaliation for prior EEO activity when:
she was told to adhere to established lunch break times when other
employees were not held to such times; and
(2) on June 12, 1997, another photographer was assigned to photograph
the commanding general.
In her second complaint, filed on June 13, 2000 (referred to as a CECOM,
claim), complainant alleged that she was discriminated against and exposed
to ongoing harassment on the bases of sex (female) and in reprisal for
prior EEO activity when:
(3) her performance appraisal was due in February 2000, and she had
not received it;
(4) similarly situated employees have received Level 1 ratings and were
given monetary awards while she was not;
(5) she was told she would be charged with AWOL for leaving the work
area 15 minutes early;
(6) similarly situated employees received a gifts for Secretary Week,
and she was subsequently given a gift, which she refused; and
(7) on June 12, 2000, she was placed on a performance improvement plan
(PIP) for alleged unsatisfactory performance, and she received a written
reprimand for failure to comply with the supervisor's policy for work
attendance
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of
reprisal and sex discrimination. The AJ also concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions. The AJ
further found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. The agency's final order implemented
the AJ's decision.
On appeal, complainant contends that the AJ acted arbitrarily, abused his
discretion and erred when he reversed his preliminary decision finding
discrimination. Complainant argues that on May 10, 2001, the AJ issued
a �Scheduling Order For Recovering Hearing�, in where the AJ found �on a
preliminary but reasonably certain basis,� that complainant established
a prima facie case and that she was discriminated against. Complainant
contends that this Order was dated some two days after a two-day hearing;
however, ten months later, the AJ found that complainant did not meet
her burden that the agency's reasons were pretext. Complainant contends
that in March 1999, before she filed an EEO complainant, she received
excellent ratings and bonuses. Complainant further contends that her
work performance was subjected to heightened scrutiny after she engaged
in protected activity.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We note that the AJ made a preliminary finding of discrimination,
but upon review of the entire record the AJ found no discrimination.
We conclude that the AJ neither abused his discretion nor erred in
reversing his preliminary findings.
Complainant's claim of discrimination based on sex and retaliation is a
claim of disparate treatment that must be examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). For complainant to prevail, she 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 reason was a factor in the adverse employment action.
McDonnell Douglas Corp., 411 U.S. at 802. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. Assuming arguendo that complainant has established a prima
facie case of sex, and retaliatory discrimination, we find that the agency
articulated legitimate, nondiscriminatory reasons for all of its actions.
Regarding claim (1), we find that complainant was the only employee
held to tighter compliance with the lunch schedule because she was
the sole person operating the studio. Regarding claim (2), we find
that the individuals selected to take the general's pictures, were more
experienced than complainant. Regarding claims (3) and (4), the record
reveals that complainant was put on a PIP, because she was deficient on
three of four of the elements and needed to improve and that management
did not rate complainant until the end of the PIP. Regarding claim
(5), we find that the first time that complainant left without a leave
slip, she was charged AWOL, but disciplinary action was not taken, and
that complainant was disciplined when she left her work area without
authorization for the second time. Regarding claim (6), the record
reveals that complainant refused the gift which would have been available
at the luncheon which she had declined attending. Regarding claim (7),
we find that management, instead of giving complainant a low or failing
evaluation for poor performance, gave complainant a PIP which would
substitute for her evaluation.
We conclude that complainant did not demonstrate, by a preponderance of
the evidence, that the agency's reasons were a pretext for discrimination
on the bases of sex or reprisal. In reaching this conclusion, we
note that complainant merely argued that she established a prima facie
case of reprisal but failed to rebut the agency's legitimate reasons
for its actions. Therefore, we concluded that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus.
Finally, under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), complainant's claim of harassment must fail.
See Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6
(March 8, 1994). A prima facie case of harassment is precluded based on
our finding that complainant failed to establish that any of the actions
taken by the agency were motivated by her sex or prior protected activity.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000). 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 agency's final order.
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
December 16, 2003
__________________
Date