01985818
09-13-2000
Barbara Freeman, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Barbara Freeman v. Department of the Air Force
01985818
September 13, 2000
Barbara Freeman, )
Complainant, )
) Appeal No. 01985818
v. ) Agency No. 9V1M97280
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
)
DECISION
INTRODUCTION
Barbara Freeman (complainant) timely filed an appeal on July 25, 1998 with
the Equal Employment Opportunity Commission (the Commission) from a final
agency decision (FAD), dated June 22, 1998, concerning a 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 Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et
seq.<1> The Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether the agency correctly determined that complainant was not
discriminated against on the bases of race (American Indian/Mexican
American), color (brown), sex (female), and physical disability (diabetes)
when she received a low performance appraisal rating, and a supervisory
official allegedly harassed her because she took an unauthorized break.
BACKGROUND
Complainant was employed by the agency as a Machinist, WG-3414-11.
She filed a formal complaint on August 8, 1997, alleging discrimination
on the bases of race (American Indian/Mexican American), color (brown),
sex (female), and physical disability (diabetes) when: 1) on May 13, 1997,
she received a total score of sixty-five on her Performance and Promotion
Appraisal for the period of July 1, 1996 through March 31, 1997; and 2)
on May 7, 1997, S-1, a supervisory official, allegedly harassed her for
leaving the work area to take an unauthorized and unscheduled break.
In its FAD, the agency found that it had not discriminated against
complainant. This appeal followed.
ANALYSIS AND FINDINGS
Race, Color, Gender, and Disability
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation 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 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 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, 253 (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).
This established order of analysis in discrimination cases, in which
the first step normally consists of determining the existence of
a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990). We note that the
record is not fully developed on the question of whether complainant's
diabetes was a disability. For the purpose of analysis, however, we will
assume that complainant was a qualified individual with a disability.
In response to complainant's claim that she should have received a
higher performance rating,<2> we find that the agency has articulated
a legitimate, nondiscriminatory reason for the rating that complainant
received, namely that the rating accurately reflected her performance.
The record shows that complainant received the performance rating
that she did due to tardiness, lack of work area tidiness, visiting
excessively with other employees, not solving major problems or
working well with others, and occasionally becoming quite loud.
Since the agency articulated such a reason, the burden returns to the
complainant to demonstrate that the agency's articulated reason was a
pretext for discrimination. We find that the complainant has failed
to show pretext because she has not demonstrated, nor does the record
show, that she deserved a higher score on her performance appraisal.
To demonstrate pretext, complainant includes a log of her daily work
activity from August 6, 1996 through May 23, 1997. This work record
does not, however, reflect the quality of her work. It merely reflects
which tasks she performed. This evidence alone does not show that her
rating should have been higher. Additionally, the record contains no
other evidence that the rating should have been higher and that the
reason given for the rating was pretextual. We find, therefore, that
the agency's determination that complainant failed to establish that
she was discriminated against, with respect to this claim, was correct.
In response to claim 2, we find that the agency has articulated a
legitimate, nondiscriminatory reason for S-1's actions, namely that
complainant's break was unauthorized and unscheduled, that it was S-1's
regular practice to warn employees about taking unauthorized breaks
because of the nature of their jobs as machinists, and that S-1 was not
aware of complainant's condition. Since the agency articulated such a
reason, the burden returns to the complainant to demonstrate that the
agency's articulated reason was a pretext for discrimination.
We find that complainant has failed to show pretext. Complainant argues
that "two other white males with diabetes in [her] shop can and do eat
anytime they feel the need to treat their diabetes and nothing has ever
been said to them in any manner by any supervisor." This argument does
not demonstrate pretext. The record shows that the two male employees
that complainant refers to, E-1 and E-2, did have diabetes. E-1 had a
different supervisor than either complainant or E-2. His supervisor,
S-2, had known of his condition for many years. E-1 and S-2 had
worked out an arrangement whereby he would notify S-2 before taking an
unscheduled food break, unless he needed to eat immediately and could
not notify S-2 beforehand. E-2's supervisor was S-1. S-1 testified in
his affidavit that he was not aware that E-2 had diabetes. Further,
there is no evidence in the record that S-1 was aware that any other
employees had diabetes. Once complainant informed him that she needed to
take a food break because she was diabetic, he did not prevent her from
taking the break. He merely told her that, in the future, she needed
to tell her supervisor when she was having problems and needed a break,
as it was his practice to warn employees about taking unauthorized
and unscheduled breaks. Therefore, the agency's determination that
complainant failed to establish that she was discriminated against,
with respect to this claim, was correct.
Harassment
The Commission also finds that complainant has not established that
she was harassed by S-1 when he discussed the break with her. It is
well-settled that harassment based on an individual's race, color, sex,
and disability is actionable. See Meritor Savings Bank FSB v. Vinson, 477
U.S. 57 (1986). In order to establish a claim of harassment under those
bases, the complainant must show that: (1) she belongs to the statutorily
protected classes; (2) she was subjected to unwelcome conduct related to
her membership in those classes; (3) the harassment complained of was
based on race, color, sex, and disability; (4) the harassment had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
If the complainant satisfies the five elements, then the agency is
subject to vicarious liability insofar as the harassment would have
been �created by a supervisor with immediate ... authority over the
[complainant].� Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999),
at 4 (citing Burlington Industries, Inc., v. Ellerth, 524 U.S. 742,
118 S.Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)).<3>
Assuming arguendo that claim 2 meets the requirements of factors (1), (2)
and (3) of the test articulated above, under factor (4) of the test, we
find that the conduct complained of herein was not sufficiently severe or
pervasive to the point where it altered the complainant's employment and
created an abusive working environment. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). The conduct complained of was a single
comment by S-1 that was not severe. He asked complainant why she was
taking an unauthorized food break, did not prevent her from taking the
break once he was informed of her diabetes, but merely told her to,
in the future, inform her own supervisor if she was not feeling well
and needed to take a food break.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
09-13-00
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
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 Complainant received a "fully successful" rating. She believes that
she deserved a "superior" rating.
3 When the harassment does not result in a tangible employment action,
the agency can raise an affirmative defense to liability which it
can meet by demonstrating: (a) that it exercised reasonable care to
prevent and correct promptly any harassing behavior; and (b) that
the employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, at 12. This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or reassignment) being taken against the employee. Id. at 7.