0120062259
09-07-2007
Brenda J. Wittmann, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Brenda J. Wittmann,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200622591
Hearing No. 310-2005-00342X
Agency No. 9V1M04474L06
DECISION
On February 21, 2006, complainant filed an appeal from the agency's
February 13, 2006 final action concerning her equal employment opportunity
(EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the
agency's final action.
At the time of events giving rise to this complaint, complainant
worked as a Supply Technician, GS-2005-07, in the Propulsion Support
Branch, Maintenance Material Support Division, Maintenance Directorate.
On September 28, 2004, complainant filed a formal EEO complaint wherein
she claimed that she was discriminated against on the basis of sex
(female). Complainant claimed that she was harassed and subjected to
a hostile work environment when:
1. On July 15, 2004, she was denied advance sick leave.
2. On July 9, 2004, her section chief yelled and cursed at her.
On October 22, 2004, the agency issued a partial dismissal wherein it
dismissed claim (2) pursuant to 29 C.F.R. 1614.107(a)(1) on the grounds
of failure to state a claim. The agency determined that complainant had
not been rendered aggrieved as even though her supervisor's behavior
may have been inappropriate, she did not identify a tangible act that
adversely affected her employment. The agency further determined that
complainant was not harassed by this incident because an isolated incident
does not rise to the level of harassment. The agency accepted claim
(1) for investigation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew her request. Consequently,
the agency issued a final action pursuant to 29 C.F.R. � 1614.110(b)
wherein it determined that complainant failed to prove that she was
subjected to discrimination as alleged. The agency concluded that
complainant failed to establish a prima facie case of sex discrimination.
The agency stated that complainant's supervisor denied the only other
advance sick leave requests submitted, that of one male and one other
female. With regard to a male comparison cited by complainant as having
been granted advance sick leave, the agency noted that there is no record
of this employee ever requesting advance sick leave and the supervisor
stated that he never approved a request for advance sick leave from
this employee. The agency determined that even if complainant had
set forth a prima facie case, it nonetheless articulated a legitimate,
nondiscriminatory reason for denying the request of 49 and 1/2 hours of
advance sick leave. According to the agency, complainant consistently
maintained a low sick leave balance, routinely used more sick leave
than she accrued, and there were concerns about her ability to repay
any advance. The agency noted that the supervisor approved all of
complainant's other requested leave and also initiated and approved a
request for her to be placed in the leave donation recipient program.
The agency found that complainant failed to establish that the agency's
articulated reason was pretext to mask unlawful discrimination.
On appeal, complainant contends with regard to the dismissed claim that
her second-level supervisor yelled at her that she is a good employee
but no longer a pleasure to be around. Complainant states that he told
her that negative e-mails had been received about her and that she needed
to get over her son's death.
In response, the agency asserts that the only male to request advance
sick leave from the same supervisor also had his request denied.
The agency states that its regulations provide that sick leave should
be advanced only when it is likely the advanced leave can be repaid.
The agency argues that in light of complainant's leave history, repayment
was highly unlikely. According to the agency, it is clear that the
supervisor did not intend to discriminate against complainant given that
he approved all of complainant's other leave requests and saw that she
was enrolled as a recipient in the leave donation program. With regard
to the dismissed claim, the agency asserts that the meeting at issue was
private and was not reported by management to anyone. The agency states
that no sexually derogatory comments were made. The agency concludes
that even if complainant's version of the events of July 9, 2004 is true,
this does not constitute an actionable claim of discrimination.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment based on sex, complainant must
show that: (1) she is a member of the statutorily protected class;
(2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11. 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). Further, the
incidents must have been "sufficiently severe and pervasive to alter
the conditions of complainant's employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of sex discrimination. Next, we shall
consider whether the agency articulated a legitimate, nondiscriminatory
reason for its action. We find that the agency articulated a legitimate,
nondiscriminatory explanation for its denial of complainant's request
for 49 and 1/2 hours of advance sick leave based on complainant's low
sick leave balance, her routine use of more sick leave than she accrued,
and concerns about her ability to repay any advance. Upon review of
the arguments set forth by complainant, we find that complainant has not
refuted the agency's position with regard to its decision. Complainant
has not established that the agency's denial of her advance leave request
was motivated by an intent to discriminate against her or constituted
harassment on the basis of sex. Complainant has not established that
her supervisor approved a request for advance sick leave submitted by an
employee outside her protected group. With regard to the claim which was
procedurally dismissed, we find that this claim was properly dismissed
because this incident, as found by the agency, did not cause complainant
to suffer harm to a term, condition, or privilege of her employment.
Further, the relevant incident does not rise to the level necessary to
state a claim of harassment.
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 7, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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01200622
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120062259