01990389
12-12-2000
Barbara A. Bryan, Complainant, v. Lynn M. Bragg, Chairman, United States International Trade Commission, Agency.
Barbara A. Bryan v. U.S. International Trade Commission
01990389
December 12, 2000
.
Barbara A. Bryan,
Complainant,
v.
Lynn M. Bragg,
Chairman,
United States International Trade Commission,
Agency.
Appeal No. 01990389
Agency No. USITC 98-01
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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et
seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<2>
Complainant alleged that she was discriminated against based on race
(African American), color (Black), and age (over 40 years old), when:
(1) she was not promoted to GS-13; and (2) she was allegedly harassed
by several management officials.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Statistician, GS-1530-12, Statistical and Editorial Services Division
(SESD), Office of Information Services (OIS), Office of Operations,
in the agency's Washington, DC office. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on December 29, 1997. At the conclusion of
the investigation, complainant requested that the agency issue a final
decision. The agency issued a final decision on September 28, 1998.
Complainant is an African American female, born September 25, 1997,
and was over 40 years of age at the time of the alleged discrimination.
She had been employed by the agency since July 1987 and been a GS-12
statistician since July 1988. With regard to her non-promotion to GS-13,
complainant indicated that she was more than qualified for promotion
to GS-13, and that some of the duties she was performing were the same
as the duties of one of her co-workers, a 44-year-old white male, a
GS-13 Senior Statistician in SESD. Complainant also stated that her
immediate supervisor had told her on more than one occasion that she
was performing at the GS-13 level, and that he wanted to promote her.
Complainant stated that she formally requested a desk audit of her
position in the fall of 1997 and that such an audit was performed in
January 1998, but that she had not yet learned the results of the audit.
In its FAD, the agency concluded that complainant had established a
prima facie case. However, with respect to complainant's non-promotion
to GS-13, the agency found that there had not been for years a GS-13
statistician position in SESD to which complainant could have been
promoted. It found that as a GS-12, complainant was at the top of her
career ladder. In order to promote her to GS-13, a new position would
have had to be established. With respect to complainant's allegations
of harassment, the agency concluded that the record simply failed to
establish that she was the target of harassment by her supervisors or
others.
Complainant filed an appeal, but did not submit a brief. The agency
did not file a response to the appeal.
FINDINGS AND ANALYSIS
Non-Promotion
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Prewitt v. USPS, 662 F.2d 292 (5th
Cir. 1981); Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring
a showing that age was a determinative factor, in the sense that "but
for" age, complainant would not have been subject to the adverse action
at issue). A complainant 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, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
In order to establish a prima facie case of discrimination, complainant
may show that she is a member of a protected group and that she was
treated less favorably than other similarly situated employees outside
her protected group. See Potter v. Goodwill Industries of Cleveland,
518 F.2d 864, 865 (6th Cir. 1975). Complainant may also set forth
evidence of acts from which, if otherwise unexplained, an inference of
discrimination can be drawn. Furnco, 438 U.S. at 576.
The agency acknowledged in its FAD that complainant established a prima
facie case of discrimination. Complainant is a member of a protected
group based on her race (African-American), color (Black), and age (over
40 years of age). It appears, however, that complainant has not been
treated less favorably than other similarly situated employees outside
her protected group. Although she has not been promoted to GS-13, no
one has been promoted to GS-13 in her job series in her division since
September 1991. Nor does complainant identify any other promotions to
GS-13 in her statistician job series (GS-1530) at the agency. In any
event, assuming arguendo that complainant has established a prima facie
case, the agency has articulated a legitimate, nondiscriminatory reason
for its failure to promote complainant to GS-13, i.e., that the only
person promoted to GS-13 in SESD was better qualified than complainant
at the time of the promotion.
Complainant has adduced no evidence tending to prove that the
agency's explanation for its action was a pretext designed to conceal
discriminatory animus. There are only two statisticians in SESD with
a higher grade than complainant. One is the Chief of SESD, GS-14,
Caucasian, and the other is the Senior Statistician, GS-13, Caucasian.
The Senior Statistician was promoted in September 1991, after he had
served as acting division chief while the Chief was detailed to Geneva,
Switzerland for two years. The Senior Statistician had been a GS-12 for
approximately eight years in September 1991, while complainant had been a
GS-12 for approximately three years. Complainant has not alleged that in
September 1991, she was better qualified than the Senior Statistician or
that she should have received the promotion. Complainant acknowledges
that the Senior Statistician was the last person in the Division promoted
to GS-13 Statistician. Complainant's Affidavit at 9. The Chief of
SESD acknowledged that complainant deserves a promotion to GS-13.
However, it has been pointed out that it would be difficult to promote
complainant without actually creating a position for her to occupy.
Other African-American female GS-12 statisticians (under and over 40
years of age) in SESD stated that they did not believe employees had been
discriminated against on the basis of their race, color, or age by the
Chief of SESD. Similar comments were made by African-American female
and male GS-7 Statistical Assistants (over 40 years of age) in SESD.
Harassment
Complainant has also alleged that she was subjected to harassment.
The harassment of an employee based on his/her race, color, sex,
national origin, age, disability, or religion is unlawful, if it is
sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985). To prevail on her harassment claims, however,
complainant must show that she was subjected to harassment because
of discriminatory factors with regard to an issue in her complaint.
In assessing allegations of harassment, the Commission examines
factors such as the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating and
if it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found
that remarks or comments unaccompanied by a concrete agency action
usually are not a direct and personal deprivation sufficient to render an
individual aggrieved for the purposes of Title VII. See Backo v. United
States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry
v. United States Postal Service, EEOC Request No. 05940695 (February
9, 1995). In determining whether an objectively hostile or abusive
work environment existed, the trier of fact should consider whether a
reasonable person in the complainant's circumstances would have found
the alleged behavior to be hostile or abusive.
To establish a prima facie case of hostile environment harassment,
complainant must show that: (1) she is a member of a statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
Complainant testified she felt harassed by an assistant director in OIS,
the chief of OIS's Information Systems Division, because whenever she
began to converse about office business with personnel in his Division,
he would walk over and interrupt. At other times, he would purportedly
watch her with a look of contempt. Another time, while complainant
was in the room, he allegedly told a young lady that she could get her
work done if she (the young lady) would get the �riff-raff� out of her
room. He also arguably told complainant to do things that were unethical
and illegal, such as purchasing computer software, but not ordering the
appropriate number of licenses. There was also an incident in August
1997, when her office mate gave her a piece of bread wrapped in a piece
of paper with writing relating to �a murder, a woman, a judge and a hit
list in New Hampshire.� Complainant further alleges that she received
a substantially increased work load with a decrease in staff assistance.
We find that complainant has not sufficiently met her burden of proving
that the alleged incidents were related to her race, color, and/or age.
Complainant has also not sufficiently met her burden of proving that
the incidents were sufficiently severe that they affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. In complainant's general
allegations, she failed to detail the duration, frequency, severity,
and/or nature of the incidents. This is especially true of the alleged
interruptions, looks of contempt, and increased work load/decrease in
staff assistance. See, generally, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999).
We are also concerned about the general lack of corroboration
of complainant's allegations, including the �riff-raff� incident.
The assistant director of OIS denied the allegations directed at him
and also explained that he had very limited contact with complainant
over the years. With respect to the allegation of complainant being
told to do things that were unethical and illegal, complainant's
office mate indicated that there was a prejudice in the office against
honest people. The agency also explained that interpreting software
agreements was difficult, and varying interpretations could be made,
but that there was no intent to do anything unethical or dishonest. In
any event, dishonesty and illegality, in the context of complainant's
allegation, although reprehensible, if proven, are nevertheless beyond
the scope of protected bases in the complaint. With respect to the
�hit list incident�, a witness, an African American female computer
systems analyst in OIS, testified by affidavit that complainant and
she talked about the incident a little and then both laughed it off.
Complainant's office mate explained that the incident had to do with an
investigation of distribution of drugs in the agency, which complainant
had called attention to, and was told by the police not to get involved
because she could be murdered. Thus, although complainant suggests
that her second-line supervisor was responsible for instigating the
incident, it is insufficiently probative of harassment for purposes of
complainant's protected bases. The record also bears out a number of
African-American witnesses, male and female, under and over 40 years
of age from SESD, who testified by affidavit that they did not believe
employees had been discriminated against on the basis of their race,
color, or age by the Chief of SESD. Although complainant's office mate
testified that there was a racist atmosphere at the agency, he based this
on an alleged tendency of agency officials to shout at black employees.
Complainant, however, has not focused on harassment in terms of shouting,
and complainant's office mate did not indicate that anyone at the agency
shouted at complainant.
CONCLUSION
For the reasons set forth above, after a careful review of the record,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 12, 2000
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.