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

Equal Employment Opportunity CommissionNov 21, 2000
01991864 (E.E.O.C. Nov. 21, 2000)

01991864

11-21-2000

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


Bettie J. Conley v. Department of the Navy

01991864

November 21, 2000

.

Bettie J. Conley,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01991864

Agency No. 94-499941-005

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.<1> The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated

against on the bases of race (Black), color (black), and reprisal

(prior EEO complaints) when:

(1) she was harassed on December 3, 1993, by her supervisor, the Deputy

Director (DD), when she went through her office and reorganized her work,

causing confusion and chaos, and making complainant look incompetent

to her peers and subordinates;

DD treated complainant like a kindergarten child in front of her

subordinate, and accused her of being antagonistic during a meeting

in which she told her that she had not accomplished anything since she

was reassigned in September 1993, knowing that complainant had not been

provided adequate resources and had been out sick; and

DD also required complainant to work without a position description

and with inadequate resources in an attempt to discredit her.<2>

The record reveals that during the relevant time, complainant was

employed as an EEO Specialist, GS-230-12, at the agency's Naval Air

Station facility, Jacksonville, Florida. Believing she was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on February 25, 1994. 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. Although complainant initially requested

a hearing, she later requested that the agency issue a final decision

without a hearing.

In its FAD, the agency concluded that while complainant had established

a prima facie case of reprisal, the agency articulated legitimate,

nondiscriminatory reasons for its actions in all three of the above

issues, which complainant was not able to show were a pretext for

discrimination. On appeal, complainant submits additional documents

in an effort to show that she was given inadequate resources to perform

her job. She also notes that the agency wanted her to do her own position

description. In contrast, complainant and the DD worked on the re-write

of a position description for a White Labor Relations Specialist so that

it would be in place when the latter was reassigned to the office from

which complainant was moved. The agency requests that we affirm the FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the

Commission agrees with the agency that while complainant established a

prima facie case of reprisal discrimination, complainant then failed

to present evidence that more likely than not, the agency's articulated

reasons for its actions were a pretext for discrimination. In reaching

this conclusion, we note the following concerning the above three issues:

Issue (1). The DD testified that she and complainant were the only

employees at work on December 3, 1993, as complainant had to finish an

overdue report for top management. When complainant told her that she

did not need any help with the report, DD then spent the time sorting

through print-outs to familiarize herself with complainant's work.

After complainant finished the report, DD asked her to educate her

about her work, and tell her about the documents in her in-box, which

they then stacked by category. During the more than three hours the

DD spent with complainant, she observed that the complainant appeared

normal and she did not detect any anger or frustration on the latter's

part about the process they were going through.

Issue (2). The DD made a simple, hand-written chart to identify the

organizations serviced by complainant as the Manager of the Affirmative

Employment Program and what reports were needed for each of them.

She understood this to be what complainant considered as being treated

like a kindergarten child, and had no recollection of making any comments

that could be construed as accusing complainant of not accomplishing

anything since her re-assignment in September 1993.

Issue (3). The DD explained that because of a reorganization of

the Activity in September 1993, approximately 25 employees were in

need of new position descriptions. The Operations Department Head

(ODH) testified that she provided complainant with a draft position

description during an October 20, 1993 meeting, but that the position

description was not finalized while she was complainant's supervisor

because she never received any input from complainant. She observed

that two of her other employees (both White) also did not have position

descriptions during the time that she supervised complainant. In regard

to complainant's allegedly being given inadequate resources to perform

her job, complainant was not able to cite similarly situated employees

not in her protected groups who were treated more favorably in similar

circumstances

The ODH pointed out to complainant that if her assistant could not do

all the necessary typing, that the ODH's own secretary was available

to help her. The DD noted that complainant was offered help by the

Personnel Director, other EEO specialists, and herself, but that the

complainant replied that she could do the work herself.

Complainant proffered no evidence nor arguments to rebut the above

testimony by responsible management officials. After a careful review

of the record, we find that complainant presented no evidence that any

of the above actions were objectively offensive, abusive or hostile, or

were otherwise taken in order to harass her. In this respect, we note

that while complainant may have found some of the challenged actions

difficult or frustrating, the actions alleged are common workplace

occurrences, and unless it is reasonably established that the actions

were somehow abusive or offensive, and were taken in order to harass

complainant on the basis of any of her protected classes, such everyday

events are not sufficiently severe or pervasive so as to offend the

general sensibility of an individual experiencing such occurrences in

the workplace. See Wolf v. United States Postal Service, EEOC Appeal

No. 01961559 (July 23, 1998). See Also Long v. Veterans Administration,

EEOC Appeal No. 01950169 (August 14, 1997). Therefore, after a careful

review of the record, including arguments and evidence not specifically

addressed in this decision, 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

November 21, 2000

Date

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 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.

2The Commission previously affirmed the dismissal of two other claims

raised in the complainant. See EEOC Request No. 05950368 (February 2,

1996).