01990918
04-20-2000
Deborah Biesbrock, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Deborah Biesbrock v. Department of the Navy
01990918
April 20, 2000
Deborah Biesbrock, )
Complainant, )
) Appeal No. 01990918
v. ) Agency No. 9765923025
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
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, as amended,
42 U.S.C. � 2000e et seq. <1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that she was discriminated against on the bases
of race (American Indian), sex (female), and in reprisal for prior EEO
activity when:
(1) on October 11, 1996, she was not referred for a promotion to Sheet
Metal Mechanic (Aircraft) Supervisor I (Vacancy Announcement 211-96-2);
and
during September and October 1996, she was harassed by management
officials.
The record reveals that during the relevant time, complainant was
employed as a Sheet Metal Mechanic at the agency's Naval Aviation
Depot in Cherry Point, North Carolina. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on December 12, 1996. 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. When complainant failed to respond within the
time period specified in 29 C.F.R. � 1614, the agency issued a FAD,
finding no discrimination. From this FAD complainant now appeals.
On October 11, 1996 complainant was rated not eligible for a merit
promotion to the position of Sheet Metal Mechanic Supervisor I. The
agency initially rated the complainant ineligible, and later re-rated
her qualified. Complainant avers that she was discriminated and/or
retaliated against when the agency initially rated her ineligible.
According to the agency, it rated the complainant and five other
applicants ineligible because they failed to completely fully outline
their qualifications. Once the six ineligible applicants received letters
explaining their ineligibility, they all complained. As a result of these
complainants, the agency decided to reevaluate all of the applications.
Upon reevaluation, the agency rated all six of the previously ineligible
candidates, qualified.
Complainant alleges that she was harassed by her supervisors in various
ways. On different occasions complainant alleges that she was stalked,
assigned menial labor, and denied an on the spot award. On September 22,
1996 complainant alleges that everyone on the night shift, except her,
received an on the spot cash award. The agency indicates that the on
the spot award was awarded to employees who worked on Aircraft #286.
The criteria for receiving the award was that the award-winners had to
be permanently assigned to the shop during the time the aircraft was in
the shop, and that the award-winners must have performed some work on
the aircraft. The agency argues that complainant was not qualified to
receive the on the spot award because she was not permanently assigned
to the shop and because she did not perform work on Aircraft #286.
The record indicates that in addition to complainant, seven other
employees were unqualified to receive the awards.
Complainant alleges that on September 23, 1996, she attended a meeting
with several of her superiors. She alleges that during the meeting these
superiors made derogatory remarks. At the meeting complainant alleged
that a comment was made that an employee, with prior EEO activity,
was taken away in handcuffs. Another comment was made that the there
was only one woman on the night shift. Complainant argues that these
remarks, when taken together, constitute harassment. The agency found
these allegations unsupported by the record. Those alleged to have made
the comments disavowed any memory of them.
Complainant also alleges that she was stalked by a supervisor.
Complainant claims that a supervisor waited for her outside of the women's
bathroom, followed her from the bathroom to a vending machine where he
allegedly told her that she could not drink sodas while she worked.
Complainant told the supervisor that she could drink sodas while she
worked pursuant to a union agreement. Complainant alleged that another
supervisor called around the work area looking for the her when she
left her work area for any length of time. Complainant alleges that
her whereabouts were constantly monitored by supervisors. The agency
rebuts complainant's allegations by indicating that all of the supervisors
involved in these alleged stalking incidents were merely doing their job.
The agency posits that supervisors monitor all employees who are absent
from their shops in an effort to ensure that productions goals are met.
Complainant also argues that she was assigned various menial tasks which
included putting wire tags on aircraft parts and physically moving
large wagons. Complainant's supervisor indicates that all employees
are required to perform tasks as assigned. The agency indicates that
complainant was not singled out for assignment to these tasks and that
every employee of the shop was assigned to perform special assignments
as the need becomes clear.
Complainant also claims that she was transferred and forced off the relief
supervisor's list. The agency argues that temporary workload-based
reassignment is commonplace throughout complainant's activity.
Complainant's supervisor responded to these allegations by pointing out
that complainant was transferred temporarily to a different shop, when the
work in her shop slowed. The supervisor went on to say that the transfer
of employees to accommodate work is consistent with agency practice.
We note that complainant's allegation that she was discriminatorily
rated not eligible for the position of Sheet Metal Mechanic (Aircraft)
Supervisor I constitutes an allegation of disparate treatment.
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 Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979) (applying McDonnell Douglas to age 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. 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
proffered by the agency was a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Applying this precedent to the facts of the instant case, we find
that complainant has failed to demonstrate that she was discriminated
against when she was initially rated ineligible for the Sheet Metal
Mechanic (Aircraft) Supervisor I position. Complainant failed to
demonstrate that the agency's reasons were a pretext for discrimination
and/or retaliation. In so finding we note that the agency articulated a
legitimate nondiscriminatory reason for rating the complainant ineligible,
namely, her application for the position failed to identify qualifying
experience. Other applicants, not in complainant's protected categories,
who failed to identify qualifying experience, were also found ineligible.
Complainant asserts that her remaining allegations, when taken together,
indicate a pattern of harassment, in violation of Title VII. 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. Wibstad v. United States Postal
Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney
v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). The Supreme Court
has stated that, "[c]onduct 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 v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993). In determining that a working environment is hostile, 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,
510 U.S. at 21; EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
The complainant failed to demonstrate that she was subject to an
objectively hostile work environment. Additionally, we find no pattern
of harassment. Even as individual allegations, the agency provides
legitimate and creditable reasons for its actions.
Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 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.