Bettie J. Conley, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
05980582 (E.E.O.C. Nov. 17, 2000)

05980582

11-17-2000

Bettie J. Conley, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Bettie J. Conley v. Department of the Navy

05980582

November 17, 2000

.

Bettie J. Conley,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Request No. 05980582

Appeal No. 01963819

Agency No. 94-49941-007

Hearing No. 150-95-8030X

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Bettie

J. Conley v. Department of the Navy, EEOC Appeal No. 01963819 (February

26, 1998).<1> EEOC Regulations provide that the Commission may, in

its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

In her original complaint, complainant alleged that she was discriminated

against on the basis of reprisal for filing prior EEO complaints when:

(1) she was subjected to continuous harassment by the outgoing Deputy

Director (DD-1) on March 1, 1994, during the transition of the Affirmative

Employment Program (AEP) to the incoming Deputy Director (DD-2);

(2) the Complaints Manager (CM) had the EEO Counselor's Report on a prior

complaint dealing with complainant's nonpromotion changed to add the

promotion of DD-2, who was of the same race as complainant, even though

this promotion took place took place after the counseling period; and

(3) the Deputy EEO Officer (DEO) announced in a March 1994 EEO Newsletter

that the EEO Office was being relocated and named everyone in the Office

but complainant.

In her Recommended Decision (RD), the EEOC Administrative Judge (AJ) found

that complainant failed to prove, by a preponderance of the evidence,

that the above incidents were sufficiently severe and pervasive to

constitute discriminatory harassment and so trigger a Title VII violation.

The agency adopted the AJ's RD as its final decision (FAD) and on appeal,

we affirmed the FAD.

In her request, complainant includes a statement from DD-2 that at the

transition meeting there was �tension� among complainant, complainant's

assistant, and DD-1. Complainant also asserted that the attitude

of both DD-1 and DD-2 concerning the issue of work assignments she

gave to her assistant or the lack thereof was that complainant was

the�villain.� Complainant further contended that the addition made

to the EEO Counselor's Report of her prior nonpromotion complaint and

permitting DD-1 to respond to her allegations in the Counselor's Report

of her present complaint violated EEOC Regulations.

In its brief opposing complainant's Request for Reconsideration, the

agency contends that the request does not provide material evidence that

was not readily available when the appeal decision was issued, and does

not demonstrate that the Commission erroneously interpreted a material

fact or law, or that the decision was of such exceptional nature as to

have substantial precedential implications.

In determining whether the above three incidents constituted harassment

based on reprisal, the Commission notes that factors to consider are 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. See Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8,

1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.

The Supreme Court stated: �Conduct that is not severe or pervasive enough

to create an objectively hostile work environment - an environment that a

reasonable person would find hostile or abusive � is beyond Title VII's

purview.� Harris, at 22.

In this regard, we note the AJ's finding that complainant's allegation

that DD-1 expressed continuous anger toward her during the transition

meeting was unsupported by the record. This, to the contrary, revealed

that DD-1 was very quiet and that it was complainant's assistant who

expressed the anger. We note, too, the statements that there was tension

among the parties and that complainant felt that DD-1 and DD-2 considered

her a villain is not conduct that is severe enough or frequent enough,

lasting through only one meeting, to create an objectively hostile work

environment under Harris, supra.

As to complainant's contention that the additions to the Counselor's

Reports of her two complaints by management officials constituted a

violation of Commission Regulations, we note that the EEO Federal Sector

Complaints Processing Manual expressly provides that Counselors should

interview witnesses who have direct knowledge of a particular situation in

order to attempt informal resolution of a complaint. See EEO Management

Directive 110, Appendix A (November 9, 1999). Thus, the Counselor's

interview with DD-1 and the inclusion of the latter's testimony in the

Counselor's Report did not violate Commission Regulations but rather

conformed to them. In regard to the addition of the promotion of DD-2

to the Counselor's Report of the prior complaint, we agree with the AJ

that if it was irrelevant, complainant could have so testified but chose

not to do and that in any case, this incident was not severe enough or

pervasive enough to constitute harassment in violation of Title VII.

Alternatively, even if this complaint were analyzed as alleging disparate

treatment based on reprisal, the incidents cited do not satisfy the

standard of being �reasonably likely to deter the charging party or

others from engaging in protected activity.� EEOC Compliance Manual,

Section 8 (Retaliation) at 8-13 - 8-14 (May 20, 1998).

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission therefore finds

that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b),

and it is the decision of the Commission to deny the request.

The decision in EEOC Appeal No. 01963819 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

November 17, 2000

Date

1On 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.