Beverly Burkett, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01986279 (E.E.O.C. Mar. 17, 2000)

01986279

03-17-2000

Beverly Burkett, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Beverly Burkett v. Department of Agriculture

01986279

March 17, 2000

Beverly Burkett, )

Complainant, )

) Appeal No. 01986279

v. ) Agency No. 941230

) Hearing No. 250-96-8255X

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

on the bases of race (Black) and sex (female) in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et

seq.<1> Complainant alleges she was discriminated against when: (1)

on May 13, 1994, she was given a letter of reprimand (LOR); (2) from

May to October 1994, she was not promoted; and (3) in 1994, she was

not given a performance award. The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

For the following reasons, the Commission AFFIRMS the agency's decision.

The record reveals that during the relevant time, complainant was employed

as a GS-6 Program Assistant at the agency's Lincoln County Farm Service

Agency in Star City, Arkansas. Complainant's first-line supervisor was

the Lincoln County Executive Director (ED). Complainant stated that she

was the only Black employed at the agency. Complainant testified that the

ED presented her with an LOR, which threatened her with discharge if her

attitude did not improve within 30 days. Complainant further testified

that the ED believed her family problems were causing her difficulties

in the office. Complainant declared that she did not discuss her family

problems in the office as much as some other employees, and that her

attitude was not affected. She stated that two white co-workers were not

given letters of reprimand nor otherwise disciplined for problems similar

to what she has been accused. She further stated that in November 1993,

she discussed the possibility of an upgrade with the ED, and that he

informed her that he was working on it. However, complainant indicated

that the ED mandated that she take-on two additional programs, Disaster

and Reconstitution, in order for her qualify for a GS-7. Complainant

agreed to the assignment of the additional programs, however, she was

not promoted. Complainant testified that in May 1994, she again inquired

of the ED as to the promotion. She stated that he informed her that

she could not be promoted because of the agency freeze on hiring and

promotion. Complainant testified that she was eventually promoted to a

GS-7 on October 2, 1994. She further testified that she should have been

promoted earlier, but that the ED did not want to promote her because he

was afraid she would leave the agency. Complainant stated that another

Program Assistant, Comparison 1 (white female), was promoted to a GS-7

at approximately the same time she was, but that she was not assigned

any additional programs to qualify her for the GS-7 level. Complainant

further stated that, of the five Program Assistants in the Lincoln County

Office, she was the only one not to receive an award in 1993 and 1994.

She testified that her work was as good as anyone's, and that she put

in extra effort and overtime to help out. She further testified that

the ED had indicated to her that she needed to improve her attitude in

order to get an award. Complainant also noted that she had heard the

ED use disparaging remarks based upon race. While acknowledging that

these remarks were never directed at her, complainant stated that she

had overheard the ED specifically use the word "nigger" when conversing

with non-employees of her office. Complainant acknowledged that she

never communicated the ED's disparaging remarks to other members of

management at the agency.

The ED testified that he issued complainant the LOR, on May 13,

1994, because of her attitude. He further testified that complainant

constantly complained about family problems while at work. The ED stated

that complainant complained more than other employees in the office.

He further stated that the letter got results in that complainant's

attitude improved. The ED testified that he was not going to terminate

complainant, even though the letter he issued complainant stated that

he might do so if her attitude did not improve. Regarding promotions,

the ED testified that they are based on county workloads. While noting

that he processed her promotion at the very same time he issued her

the letter, he indicated that he had begun to initiate complainant's

promotion in November/December 1993. The ED testified that complainant

has been promoted faster than any of the other Program Assistants, who

have all worked for a longer time at the agency. Comparing complainant's

promotion record to that of the other Program Assistants, the ED testified

that Comparison 2 (white female) was employed twenty-nine years before

receiving a promotion to a GS-7; Comparison 3 (white female) was employed

ten years before receiving a promotion to a GS-7; Comparison 4 (white

female) was employed nine years before receiving a promotion to a GS-7;

Comparison 1 (white female) was employed eight years before receiving

a promotion to a GS-7; and complainant was employed seven years before

receiving a promotion to a GS-7. He further testified that Comparison 1

was an expert in her field; thus, she was eligible for promotion without

assignment of additional programs. While noting that he had assigned

complainant two additional programs so that she could qualify for the

GS-7 level, the ED stated that complainant's promotion was delayed due

to an agency wide freeze on personnel actions. He further stated that

complainant was upset when her promotion was delayed and blamed him.

Concerning awards, the ED testified that complainant did not receive an

award in 1993/1994 because her promotion to a GS-7 was being processed

and because her performance did not warrant one. He indicated that the

agency handbook restricts granting a quality step increase to an employee

who is about to be promoted.<2> The ED stated that if he used racially

derogatory words it was unintentional.

The Chief Administrative Officer testified as to the agency's promotion

procedures in effect during the 1993-1994 time period. He stated that

it was not unusual that complainant was assigned two extra programs

to enable her to be eligible for the GS-7 upgrade, because it was

necessary that an employee be assigned at least two programs that met

the adjudicated work day criteria. The Chief stated that Comparison 1

was not assigned any additional programs prior to her promotion because

she already had a sufficient number of programs and was recognized as

an expert in a program. He further stated that complainant's promotion

was processed when the freeze was lifted in August 1994. While noting

that both complainant and Comparison 1 were both promoted in October

1994, the Chief stated that Comparison 1 was recommended for promotion

by the ED after the freeze was lifted. The Chief declared that the LOR

issued to complainant was neither a termination letter nor an official LOR

because it was not cleared through the personnel office prior to issuance.

He further declared that this letter was not maintained in complainant's

personnel records.

Comparison 2 testified that there really were not any racial slurs in

the office. She stated, however, that the ED would sometimes use the

"N word." She further stated that the ED has called Black people "that"

all of his life, and that "he didn't mean to hurt anyone."

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on December 28,

1994. By letter dated February 1, 1995, complainant was advised that

her allegation had been accepted for investigation. At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

After conducting a hearing and reviewing the evidence of record, the

AJ issued a recommended decision (RD), dated May 2, 1997, finding no

discrimination. The AJ concluded that complainant failed to establish

a prima facie case of race or sex discrimination because she failed to

demonstrate that she has suffered an adverse action with respect to the

LOR, and because she has failed to show a causal connection between

the other actions complained of and her race and sex. The AJ then

concluded that the agency articulated legitimate, nondiscriminatory

reasons for its actions, namely, that the ED stated that, complainant

required two additional programs in order to be upgraded to a GS-7 and,

but for the agency wide freeze on personnel actions, complainant would

have been promoted sooner. The AJ further concluded that complainant

did not receive an award in 1993/1994 because her promotion to a GS-7

was being processed, and that complainant did not present evidence

that her performance warranted one. The AJ also concluded that because

the LOR issued to complainant was an unofficial letter unaccompanied

by concrete agency action, complainant is not aggrieved. In its FAD,

the agency adopted the AJ's RD finding no discrimination.

ANALYSIS

LOR

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint that fails to state a claim. An agency

shall accept a complaint from any aggrieved employee or applicant for

employment who believes that he or she has been discriminated against by

that agency because of race, color, religion, sex, national origin, age or

disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's

federal sector case precedent has long defined an "aggrieved employee"

as one who suffers a present harm or loss with respect to a term,

condition, or privilege of employment for which there is a remedy.

Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April

22, 1994).

This letter was not an official LOR because it was not cleared through the

agency's personnel office prior to its issuance. Furthermore, this letter

was not maintained in complainant's personnel records. Complainant has

not shown that she has suffered a present harm or loss with respect to a

term, condition, or privilege of employment for which there is a remedy.

Therefore, with respect to this claim, complainant is not aggrieved.

PROMOTION and AWARDS

Complainant can establish a prima facie case of race or sex discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,

411 U.S. at 802). In general, to establish a prima facie case

of discrimination based on a Title VII disparate treatment claim,

complainant must show that she belongs to a statutorily protected

class and that she was accorded treatment different from that accorded

persons otherwise similarly situated who are not members of the class.

Comer v. Federal Deposit Insurance Corporation, Request No. 05940649

(May 31, 1996)(citing Potter v. Goodwill Industries of Cleveland, 518

F.2d 864, 865 (6th Cir. 1975)). In order for two or more employees to be

considered similarly situated for the purpose of creating an inference

of disparate treatment, complainant must show that all of the relevant

aspects of her employment situation are nearly identical to those of

the comparative employees whom she alleges were treated differently.

Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).

Here the record shows that complainant is a member of two protected group:

Black and female. However the Commission finds that complainant has not

established that other employees not of her protected group were treated

differently under similar circumstances. With respect to promotion,

complainant cited only Comparison 1 for examination. The record

clearly indicates that, although there were five Program Assistants

(including complainant) in the office at that time, complainant has been

promoted faster than any of the other Program Assistants, who have all

worked for a longer time at the agency. While complainant agreed to

the assignment of the additional programs in order to be promoted,

Comparison 1 was not assigned any additional programs prior to her

promotion because she already had a sufficient number of programs and

was recognized as an expert in a program. Complainant's promotion was

processed when the freeze was lifted in August of 1994. With respect

to awards, the Commission finds that complainant did not receive an

award in 1993/1994 because her promotion to a GS-7 was being processed.

The Commission also finds that complainant did not present evidence that

her performance warranted an award. Also, there are no male Program

Assistants employed at the Lincoln County Office. Thus, complainant's

claim of sex discrimination lacks merit here. The Commission finds that

complainant has not shown that other employees not of her protected

groups received better treatment than she. In the absence of any other

evidence from which to infer a discriminatory motive, the Commission

finds that complainant has not established a prima facie case of race

or sex discrimination.

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We note that complainant failed to

present evidence that any of the agency's actions were motivated by

discriminatory animus toward complainant's protected groups.<3> As a

result, we discern no basis to disturb the AJ's RD. Therefore, after a

careful review of the record, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final decision.

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:

March 17, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

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 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.

2The record indicates that the agency handbook prohibited the issuance

of awards to employees who are to be promoted within sixty days, or who

have received a promotion within the preceding fifty-two weeks from the

date of recommendation.

3While complainant's claims were not based upon a hostile work environment

involving racially disparaging language, the Commission finds that

the agency should be more cognizant of its officials who use, even

occasionally, racial epithets. We remind the agency that such conduct in

the workplace is prohibited, and that unless corrected immediately after

due notice, it will be liable for its agents' discriminatory actions.