01A10609
07-08-2002
Charlene O. Good, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Charlene O. Good v. Department of the Army
01A10609
July 8, 2002
.
Charlene O. Good,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A10609
Agency Nos. BGASFO9607G0050, BGASFO9709H0490,
BGASFO9709H0470, and AA7CFO9603G0020
Hearing Nos. 170-98-8578X, 170-98-8579X, 170-99-8031X, and 170-99-8035X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaints 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Traffic Management Analyst, GS-0301-12 at the agency's
Military Traffic Management Command (MTMC) Eastern Area, Bayonne, New
Jersey facility. Complainant sought EEO counseling and subsequently
filed formal complaints alleging that she was discriminated against on
the bases of race (African-American), sex (female), and reprisal (prior
EEO activity). At the conclusion of the investigations, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge (AJ) or alternatively, to receive a final decision by the agency.
Complainant requested a hearing before the AJ. When complainant failed to
respond to an AJ's order concerning witness information, the AJ remanded
the complaints to the agency with the recommendation that the agency
issue a FAD. In its FAD, the agency concluded that the preponderant
evidence of record failed to establish that the agency discriminated
against complainant with respect to any of the personnel actions, on
the basis of race, sex, or reprisal. The agency also concluded that it
had articulated legitimate, nondiscriminatory reasons for each action
cited by complainant, and that complainant failed to prove that any of
the reasons were a pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant, after the agency had filed a brief, submitted
a reply contending that the evidence established that the agency
discriminated against her with respect to all of the personnel actions
on the basis or race, sex, and reprisal. The agency requested that we
affirm its FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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. Complainant can establish a prima
facie case based on race or sex by showing: (1) that she is a member of
the protected group; (2) that she suffered an adverse action; and (3)
that a similarly situated employee not in her protected group was treated
more favorably than her. See McDonnell Douglas Corp. v. Green, supra.
Next, the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the agency is successful, then the complainant
must prove, by a preponderance of the evidence, that the legitimate
reason(s) proffered by the agency was a pretext for discrimination.
Id. at 256.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138- 1139 (D.C. Cir. 1985). A single incident or group
of isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe
to trigger a violation must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993). See also EEOC Compliance Manual, Section 2, Threshold
Issues, at 2-18, n.50 (citing Oncale v. Sundowner Offshore Servs., Inc.,
423 U.S. 75, 80-81 (1998) that Title VII is �not a �general civility
code,' and only prohibits . . . harassment that is �so objectively
offensive as to alter the conditions of the victim's employment.'�)
In order to prove a case of harassment, the complainant must establish,
by a preponderance of the evidence, the existence of five elements: (1)
she is a member of a statutorily protected group; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected group; (3) the harassment complained of was based on the
statutorily protected group; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with her work environment and/or creating an intimidating,
hostile, or offensive work environment; and (5) that there is a basis
for imputing liability to the employer. Henson v. City of Dundee,
682 F.2d 987, 903-05 (11th Cir. 1982).
The complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination. To establish a prima
facie case of reprisal discrimination, the complainant must show that
(1) she engaged in prior protected activity, (2) the acting agency
official was aware of the protected activity, (3) she was subsequently
disadvantaged by an adverse action, and (4) there is a causal link between
the protected activity and the adverse action. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)).
We additionally note that the statutory reprisal clauses prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity. A violation will be found if an employer retaliates against a
worker for engaging in protected activity through threats, harassment in
or out of the workplace, or any other adverse treatment that is reasonably
likely to deter protected activity by that individual or other employees.
Agency No. AA7CFO9603G0020
In her complaint filed March 18, 1996, complainant alleges that she was
discriminated against based on race and reprisal when she was subjected
to continued harassment, and was rated �successful (2)� for the period
beginning November 1, 1994, and ending October 31, 1995. In addition to
the rating, complainant principally alleges that she was harassed when
a colonel (COL) asked her to go to another office to verify the correct
subject line in a memo she was preparing; when the COL changed the date
by when complainant's subordinates were to provide complainant with
information; when her supervisor (S1) denied her union representation
at a meeting; and when S1 verbally abused her.
The COL sent complainant to another department to verify that the
subject matter of her memo was correctly referenced on the subject line.
S1 verified that the COL frequently returned written communications for
corrections and his request to complainant was not out of the ordinary.
The COL made the date change to give the complainant's subordinates more
time to submit their responses. The record reflects that in the past
the COL had changed suspense dates on documents prepared by others.
S1 invited complainant to his office for informal counseling to discuss
writings that she had prepared. Complainant wanted a union representative
to attend. S1, advising that the meeting was to be a counseling session
and was not going to lead to a disciplinary action, denied the request.
S1 testified that the union agreement did not require representation
for informal discussion. Concerning the allegation of verbal abuse, S1
denied the allegation but agreed that he might have raised his voice to
complainant because she often raised her voice to him. S1 stated that he
raised his voice due to frustration and denied that he raised his voice on
account of any discriminatory animus. Concerning the rating �successful
2,� the COL testified that complainant did not meet the standards that
were set in the evaluation; that complainant did not achieve the results
necessary for an excellent rating; and that four out of seven performance
objectives were rated satisfactory rather than excellent.
These are legitimate, nondiscriminatory reasons for the agency's actions.
The Commission finds that complainant failed to present sufficient
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination based on race or sex.
Also, complainant did not submit evidence that would persuade us that
any of the agency actions were sufficiently severe or pervasive to
alter the conditions of the complainant's employment or create a hostile
work environment.
Complainant alleged that she was discriminated against based on reprisal
for having contacted a Congressman. In her appeal statement, complainant
states that the agency's actions were a result of her congressional
complaint which cited racial discrimination. A review of complainant's
letter indicates complainant's frustration with the agency's request
for medical information, i.e., lab test results, x-rays, EKGs, and the
dates of doctors' appointments and their results, but the letter makes
no mention of racial discrimination. The agency's response to the
Congressman's inquiry states that the agency was attempting to obtain
her medical status in order to determine a return-to-work date. In her
testimony, complainant admitted that race was not raised in her letter
to the Congressman. The contacting of a Congressman to raise concerns
about an agency's sick leave policy is not a protected activity under
Title VII. Complainant has not proven that she had engaged in prior
protected activity.<1>
Agency No. BGASFO9607G0050
In her complaint filed July 5, 1996, complainant alleged that she
was discriminated against based on reprisal when she was reprimanded
by her immediate supervisor (S1). S1 requested complainant to go to
Resource Management (RM) to identify where RM had obtained its statistics
and to find out if there was a better way to present the information.
Complainant would not go to RM until S1 made a decision that she thought
he should make, then excused herself and left the room. Two co-workers
verified that complainant was loud, visibly upset, and confrontational
when telling S1 that she would not go to RM. S1 issued the reprimand when
complainant refused to follow his instruction. This is a legitimate,
nondiscriminatory reason for the agency's action. Complainant has
not met her burden to prove by preponderant evidence that the agency's
reasons for its actions were a pretext for discrimination.
Agency No. BGASFO9709H0490
In her complaint filed April 10, 1997, complainant alleged that she was
discriminated against based on race, sex, and reprisal when she received
a lowered performance appraisal on December 18, 1996, compared to her
previous performance appraisal; her seniority was disregarded by S1
when he changed the supervisory rotation system from one which allowed
for employees under his supervision to act as the supervisor during his
absence, to a non-rotation system which provided for the same employee
to act as supervisor each time he was absent; and in January 1997,
she was treated differently from her peers by being subjected to false
allegations that were not properly investigated, when she was accused
of spraying something in the air that caused a co-worker to become ill.
S1 testified that complainant received the lower performance
appraisal because she was previously issued a letter of reprimand
for insubordination and failure to follow instructions; and because
complainant had demonstrated deficient performance on a written report.
S1 testified that the COL wanted the rotation system changed so that
one employee would be responsible for communicating with the COL during
S1's absence. The chosen employee was highly competent with good skills
needed for the job. Complainant claimed that she had seniority over
the chosen employee and should have been selected. However, another
co-worker, similarly situated and outside of complainant's protected
group, who had the highest seniority also was not chosen.
Concerning the air spray incidents, all employees in the office
received instructions on what to do if offending odors were detected.
Employees were told orally to open windows to clear the odor. During an
odor incident, complainant shut a window opened by another employee.
Complainant stated that she had closed the window because she was cold.
The record is devoid of any evidence that complainant was singled out
by management as to the source of the spray. These are a legitimate,
nondiscriminatory reasons for the agency's actions. Although later
written instructions recommended that windows remain closed so that
the origin of the order could be detected, complainant has not met her
burden to prove by preponderant evidence that the agency's reasons for
its actions were a pretext for discrimination.
Agency No. BGASFO9709H0470
In her complaint, filed August 31, 1997, complainant alleged that
she was discriminated against based on race, sex, and reprisal when
she was suspended for five days without pay, effective June 9, 1997,
for unauthorized release of personnel documents and deliberate failure
to follow instructions. Complainant testified that while she was the
acting supervisor she made a copy of medical information that was a part
of another employee's personnel file. Complainant made the copy for use
in her own EEO complaint procedure. The copy was made without official
permission or consent of the co-worker. S1 testified that complainant
had violated privacy policies when she made a copy of the co-worker's
doctor's note which was in a personnel file.
S1 had instructed all employees to put their computer password in a sealed
envelope in case S1 needed computer access during an employee's absence.
Complainant failed to provide the password on two occasions, claiming
that it violated regulations; she feared an agency conspiracy; and that
there was computer tampering going on. S1 testified that he was complying
with the computer regulations, and that as supervisor he needed access to
complainant's computer. These are legitimate, nondiscriminatory reasons
for the agency's actions. The Commission further finds that complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's appeal brief, and arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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
_July 8, 2002
Date
1 The agency found that complainant did not establish a prima facie
case of reprisal because this complaint was her first EEO complaint.
An agency must consider not only prior EEO activity, but other protected
activity as well. See EEOC Compliance Manual, Section 8 (Retaliation)
(May 20, 1998). Here, however, complainant has failed to show that she
engaged in any sort of protected activity prior to initiating the EEO
process in this case.