Barbara Freeman, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 13, 2000
01985818 (E.E.O.C. Sep. 13, 2000)

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.