01992178
04-25-2000
Alberta Edwards, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Alberta Edwards, )
Complainant, )
) Appeal No. 01992178
v. ) Agency No. 970264
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that she was discriminated against on the bases of
race (Black), sex (female) and reprisal (prior EEO activity) when:
(1) her supervisor (S1) harassed her about time and attendance issues;
S1 threatened to fire her;
S1 monitored her when she left the work area;
she was not given adequate training; and
a White male employee was allowed to threaten employees, drink, and
sleep on the job, creating a hostile work environment.
Complainant alleged that these incidents created a hostile work
environment based on her race, sex and prior EEO activity and that they
illustrate how she was treated differently than similarly situated
coworkers outside her protected classes. In her formal complaint,
complainant indicated that claim no. 1 occurred on August 20, 1996 and
constituted sexual harassment.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Medical Technician in the Pathology and Laboratory Service, at
the agency's St. Louis, Missouri facility. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on November 13, 1996. At the conclusion of
the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency. Complainant requested that the agency
issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
that she was harassed due to her race, sex or prior EEO activity.<2>
The agency concluded that even if the events described by complainant
occurred, they were isolated incidents and were not severe or pervasive
enough to create an abusive working environment. The agency noted
that complainant offered no evidence to indicate that S1's conduct was
motivated by complainant's race or sex. The agency also noted that
the record did not indicate that complainant had engaged in protected
activity in the past. Finally, the agency concluded that complainant
did not establish that the white male co-worker whom she referenced in
claim no. 5 (referred to as �B� in the FAD) harassed complainant on the
bases of her race, sex or prior EEO activity. The agency noted that B's
behavior�which included threats to get his M16 and kill people, as well
as cursing, being drunk at work, and sleeping at work�stemmed not from
discriminatory animus towards complainant but from B's mental impairment
(post traumatic stress disorder).
The agency then found that complainant failed to establish a case of
disparate treatment. The agency first noted that complainant failed
to establish a prima facie case because she failed to prove that any
similarly situated individuals were treated more favorably than she.
The agency also articulated legitimate non-discriminatory reasons for its
actions. Specifically, the agency concluded that S1 did speak to other
employees when they had time and attendance problems and, in particular,
required B to use annual leave to compensate for his frequent tardiness.
S1 also testified that complainant was given extensive training.
Finally, the agency concluded that complainant failed to establish that
the agency's articulation was pretextual or that discriminatory animus
motivated any of the actions at issue.
On appeal, complainant describes specific situations in which B was
treated more favorably than she. The agency requests that we affirm
its FAD.
ANALYSIS AND FINDINGS
As an initial matter, we note that there is no evidence that complainant
engaged in EEO activity prior to filing the complaint at issue in this
appeal. In her appeal statement, complainant does not respond to the
agency's conclusion that she failed to establish a prima facie case
of reprisal because she failed to prove that she engaged in prior EEO
activity. We find, therefore, that complainant has failed to establish
a prima facie case of reprisal or retaliatory harassment in regard to
any of her claims.
We also note that there is some confusion as to whether complainant
intended to allege that she was subjected to sexual harassment.
The agency does not discuss sexual harassment in the FAD, despite the
fact that complainant's formal complaint clearly alleges that she was
subjected to sexual harassment on August 20, 1996. The counselor's
report notes that on August 20, 1996, S1 sat at one of the desks in the
clerical office area and made comments about tardiness as complainant
and other employees entered duty. In order to establish a claim of
sexual harassment, a complainant must establish, among other things,
that she was subjected to unwelcome conduct related to her gender,
including sexual advances, requests for favors, or other verbal or
physical conduct of a sexual nature. See Henson v. City of Dundee,
682 F.2d. 897 (11th Cir. 1982); see also McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999). Based on a
review of the record, we find that complainant failed to establish such
a claim, even assuming that she intended to allege that she was sexually
harassed due to all the incidents described in her complaint, not just
the August 20, 1996 incident. The record does not establish that any
of the alleged incidents involved unwelcome sexual advances, requests for
sexual favors, or other verbal or physical conduct of a sexual nature.
Disparate Treatment
Turning now to the issues addressed in the FAD, disparate treatment can
be established if complainant sets forth evidence of acts from which, if
otherwise unexplained, an inference of discrimination can be drawn. The
agency then has the burden of articulating a legitimate nondiscriminatory
reason for its actions. See Furnco Construction Corp. v. Waters, 438
U.S. 567, 576 (1978). Complainant must then prove, by a preponderance
of the evidence, that the legitimate reasons offered by the agency were
a pretext for discrimination. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).
Complainant established through her own testimony, the testimony of
two co-workers (CW1 and CW2), and, to some extent, the testimony of
S1 herself, that S1 did not counsel B--a White male employee whom she
supervised-- about time and attendance, did not monitor B leaving the
work area, and, in general, did not discipline B for any of his many
inappropriate actions. CW1 and CW2 confirm complainant's testimony that
S1 treated complainant�a Black female�far less favorably, counseling
her in front of other employees about time and attendance, leaving the
work area, and other daily behaviors, despite the fact that complainant
committed far fewer infractions than B. This evidence raises an inference
of discrimination.
We find, however, that the agency articulated a legitimate
non-discriminatory reason for its different treatment of B. Specifically,
S1 testified that she wanted to discipline B and did on occasion, but
was told by her supervisor, the Chief of the Service (CS), that due
to B's mental impairment (post traumatic stress disorder), he was not
to be disciplined. S1 also testified that she was afraid to confront
B due to his aggressive behavior, including a threat to bring his M16
to work and kill S1 and CS. CW1 and CW2 testified that the reason S1
treated B differently was that she was afraid of him due to his threats.
CS provided only very general testimony and neither confirmed nor denied
that he told S1 to treat B differently than others. CS did note, however,
that he gave B a chance to improve and did not want to punish him.
There is no evidence in the record to establish that complainant was
treated less favorably than any employee outside her protected classes,
other than B. Complainant offered no evidence that any of the actions
she described were motivated by discriminatory animus against her,
rather than S1's fear of B or CS's desire to treat B differently due
to B's condition. Accordingly, we find that complainant has failed to
establish that she was subjected to disparate treatment based on her
race or sex in regard to any of her claims.
Harassment
Turning now to complainant's claim that the incidents described in her
complaint created a hostile work environment, we find that complainant
has failed to establish a claim of harassment based race or sex.
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of her race, color, gender, religion, national
origin, or prior EEO activity. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). In the case at hand, complainant has
not established that the actions taken against her were motivated by
her race or sex. Her only evidence on this point is that she was not
treated as favorably as a White male employee. The agency established,
however, that B's treatment was based on his mental impairment and not on
complainant's race or sex. In that complainant failed to show that any
of the actions allegedly taken by the agency were based on her race or
sex, she failed to establish a claim of harassment based on race or sex.
Complainant also argued that the agency's failure to prevent B from acting
in certain ways�such as threatening and cursing at other employees and not
doing his job--created a hostile work environment. While we agree with
complainant that B's alleged behavior is disturbing and do not condone
the agency's apparent failure to prevent it, we find no evidence in the
record that any of the behavior complainant describes was motivated by
her race or sex.
Accordingly, we find that complainant has failed to establish that she
was subjected to harassment on the bases of her race or sex.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
4/25/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2 The FAD addresses claim nos. 1, 2, 3 and 5 as complainant's harassment
claim and claim nos. 1, 3 and 4 as disparate treatment claims.
After reviewing the file, we find that complainant intended to allege
that all of her claims were part of on-going harassment and that each
was an example of disparate treatment.