Delores E. Dean, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJul 26, 2000
01985703 (E.E.O.C. Jul. 26, 2000)

01985703

07-26-2000

Delores E. Dean, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Delores E. Dean v. Department of Health and Human Services

01985703

July 26, 2000

Delores E. Dean, )

Complainant, )

) Appeal No. 01985703

v. ) Agency No. IHS14894

)

Donna E. Shalala, )

Secretary, )

Department of Health and Human Services, )

Agency. )

)

DECISION

Complainant timely appealed the agency's final decision 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.

Complainant worked as a secretary in the Public Health Service, Indian

Health Service, Office of Health Program Research and Development (OHPRD).

She contacted an EEO counselor alleging that her immediate supervisor

sexually harassed her by forcing her to view obscene drawings that

he had created on a computer. According to the counselor's report,

the incident occurred on February 17, 1993. She first contacted the

counselor on February 26, 1993. As a result of the incident, the

associate director of the OHPRD immediately arranged for her to be

detailed to the Environmental Health Office (EHO). That detail took

effect on April 1, 1993. She remained in the detail until November

of that year. In a memorandum dated November 17, 1993, the associate

director informed the associate EHO director that complainant's detail

to EHO would not extend beyond November 28th. Complainant thereafter

filed a complaint in which she alleged that the associate director

discriminated against her on the basis of gender and retaliated against

her for having contacted an EEO counselor back in February by not

extending her detail.<2> The agency processed her complaint and found

no discrimination. Complainant thereafter appealed.

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). She must

initially establish a prima facie case by demonstrating that 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). 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. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519

(1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351

(December 14, 1995).

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. Where denial

of employment conditions or benefits is at issue, complainant may

establish a prima facie case by demonstrating that: she belongs to a

statutorily protected class; her employment situation is comparable

to those of employees outside of her protected class; and she was

denied conditions or benefits of employment afforded those employees.

Orr v. Tennessee Valley Authority, EEOC Request No. 05930311 (March 11,

1994); Thompkins v. Morris Brown College, 752 F.2d 558, 562 n.7 (11th

Cir. 1985). Where reprisal is at issue, complainant may establish a

prima facie case by showing that she engaged in protected EEO activity,

that individuals named in complaint knew of that activity, and that

she was subjected to an adverse action at such a time or in such

a manner as to support a causal connection between the two events.

Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,

1994); Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318 (D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976).

We find, contrary to the agency, that complainant established a prima

facie case of both sex discrimination and reprisal. It is not necessary

for complainant to show that comparative employees outside of her

protected group were similarly situated to her in order to establish a

prima facie case. See O'Connor v. Consolidated Coin Caters Corp., 507

U.S. 308, 312-13 (1996); Enforcement Guidance on O'Connor v. Consolidated

Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996);

Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).

In this case, it would be enough to show that the associate director

extended the details of male employees but did not extend her detail.

The associate director admitted in her affidavit that she had extended

the details of three male employees. Ex. 10, p. 5. This is sufficient to

establish a prima facie case of sex discrimination. As for her reprisal

claim, we agree with the agency that complainant had established a prima

facie case of unlawful retaliation.

When asked by the EEO investigator why she refused to extend complainant's

detail to EHO beyond November 1993, the associate director replied that

the workload in complainant's regular duty area required her presence

there. Ex. 10, pp. 2-4. This reason is ostensibly legitimate and

nondiscriminatory, and is therefore sufficient to rebut the inference

of discrimination and reprisal created by the prima facie case.

Complainant must now show that the associate director's explanation for

not extending her detail is a pretext for sex discrimination and reprisal.

While disbelief of the agency's articulated reasons does not compel a

finding of discrimination as a matter of law, disbelief of the reasons put

forward by the agency, together with the elements of the prima facie case,

may suffice to show intentional discrimination. Hicks, 509 U.S. at 511;

EEOC Enforcement Guidance on St. Mary's Honor Center v. Hicks, EEOC Notice

No. 915.002 (April 12, 1994); Huerta v. Department of the Air Force, EEOC

Request No. 05930802 (April 1, 1994). Complainant should bear in mind,

however, that the agency generally has broad discretion to set policies

and carry out personnel decisions, and should not be second-guessed by

the reviewing authority absent evidence of unlawful motivation. Vanek

v. Department of the Treasury, EEOC Request No. 05940906 (January 16,

1997); Kohlmeyer v. Department of the Air Force, EEOC Request No. 05960038

(August 8, 1996); Burdine, 450 U.S. at 259. The associate director

stated in her affidavit that she denied detail extensions of two other

female employees. Ex. 10, p. 4. Moreover, the three male employees

whose details were extended were in different jobs than complainant.

Ex. 13. Complainant has not shown that the associate director deviated

from the agency's normal policies or practices in a way that suggests

the existence of an unlawful motivation. See Monroe v. Department of

the Navy, EEOC Request No. 05950248 (August 8, 1996) (deviations from

standard procedures without explanation or justification sufficient to

support inference of pretext).

A question remains as to why the associate director would reassign

complainant to work under a supervisor that she accused of sexual

harassment. The record does indicate that the supervisor had drawn

pictures of nude women, landscapes, and other pictures on his computer,

that complainant had observed those drawings on February 17, 1993,

and that complainant was offended by what she had seen. While the

supervisor's behavior was inappropriate, the record does not disclose

any other incidents, which would probably preclude a finding of sexual

harassment. See Michele Hayes v. United States Postal Service, EEOC

Request No. 05980372 (June 17, 1999); Policy Guidance On Current Issues

of Sexual Harassment, EEOC Notice No. N-915-050 at 16 (March 19, 1990)

(unless the conduct complained of is very severe, a single incident

will not be regarded as sexual harassment). Thus, there is nothing in

the record to indicate that the associate director acted improperly in

returning complainant to her previous position.

After a careful review of the record, including complainant's contentions

on appeal, and arguments and evidence not specifically addressed in this

decision, we affirm the agency's final decision because the preponderance

of the evidence does not establish that discrimination had occurred.

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:

07-26-00

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 ________________________

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.

2In its final decision, the agency erroneously characterized the February

1993 sexual harassment incident as a separate issue. This is incorrect.

The only issue that the agency accepted and processed was the denial

of the detail extension. Exhibit (Ex.) 3. Complainant did not file a

sexual harassment complaint because the agency took corrective measures

in reassigning her.