Dolores DeVillier, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionApr 4, 2000
01970272 (E.E.O.C. Apr. 4, 2000)

01970272

04-04-2000

Dolores DeVillier, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Dolores DeVillier v. Department of the Interior

01970272

April 4, 2000

Dolores DeVillier, )

Complainant, )

) Appeal No. 01970272

v. ) Agency No. FWS-95-054

)

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision

concerning her complaint of unlawful employment discrimination on the

bases of race (Mexican-American), color (Brown), reprisal (prior EEO

activity), and age (forty-seven at the time of the alleged discrimination)

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; and the Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. � 621 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). For the following reasons, the Commission AFFIRMS

the agency's final decision.

ISSUE PRESENTED

The issue presented herein is whether complainant has established that

she was discriminated against on the above-referenced bases when: on

May 22, 1995, she received a letter of confirmation; on May 31, 1995,

she was berated by her first-level supervisor in front of co-workers;

and, on May 31, 1995, during a meeting with her third-level supervisor,

she was subjected to belittling and derogatory remarks.

BACKGROUND

Complainant, employed by the agency as an Accounting Technician at the

time of the alleged discrimination, filed a formal complaint on July 25,

1995, in which she raised what has been identified as the issue presented.

The agency accepted the complaint for processing and, at the conclusion

of the investigation, issued a final decision finding discrimination

on the bases of race, color, and reprisal regarding the letter of

confirmation.<2> Regarding the other two incidents (being berated by

her first-level supervisor in front of co-workers and being subjected

to belittling and derogatory remarks by her third-level supervisor),

the agency found no discrimination. This appeal followed.

The evidence of record reveals that, as part of her job duties,

complainant was charged with receiving, analyzing, and classifying various

types of payment documents such as reimbursements and purchase orders

regarding specific contracts to which she was assigned. Additionally,

she was charged with advising field officials, contractors, vendors, and

other government personnel of existing problems and proposed solutions.

One of the contracts to which complainant was assigned became the subject

of a dispute between her and the first-line supervisor. The dispute

concerned the complainant's treatment of the contract as a 14-day payment,

i.e., disseminating payment within 14 days of the invoice receipt date.

In the first-line supervisor's absence, complainant informed her

second-line supervisor that she (complainant) was concerned that the

first-line supervisor's failure to certify the contract for payment could

result in late payment. The complainant also discussed her concern with

the field representative for this particular account.

Upon her return, the first-line supervisor indicated that she did not

appreciate complainant "going over her head" regarding contracts.

And on May 22, 1995, she summoned complainant into her office to

discuss the conversation that she (complainant) had with the field

representative. During this meeting, complainant was informed that the

field representative had contacted the Director of Finance expressing

his concern about the possible late payment. She was also informed that

after speaking with the field representative, the Director of Finance sent

an e-mail to complainant's third-level supervisor concerning whether or

not the contract would be paid on time. On that same day, the first-line

supervisor issued complainant a letter of confirmation concerning her

conversation with the field representative. The purpose of the letter

was two-fold: (1) to confirm that the meeting between the first-line

supervisor and complainant did occur; and (2) to warn complainant that

any future actions of this nature could result in disciplinary action.

A copy of the letter was placed in the first-line supervisor's files.

Approximately one and a half weeks later, complainant was approached by

her first-line supervisor regarding the legality of a 14-day payment

and its acceptance and invoice dates. According to complainant,

the first-line supervisor threw some documents on her (complainant's)

desk and rudely quipped, "This is illegal and has to be addressed."

Complainant stated the first-line supervisor was very rude and totally

unprofessional. She also stated that some of her co-workers heard the

first-line supervisor's statements.

When the complainant tried to explain why she treated the payment as a

14-day, the first-line supervisor would not listen and immediately called

a meeting. During the meeting, the staff was given information regarding

14-day payments. Again, complainant attempted to tell the first-line

supervisor that she was correct in treating the document as a 14-day and

she (the first-line supervisor) abruptly ended the meeting and screamed,

"This is insubordination. . . We are going to see [the Chief, Financial

Services; i.e., complainant's third-line supervisor].<3>

Later that day, complainant was asked to join her first-line supervisor

in a meeting with her third-line supervisor. After indicating that

she wanted a third party present, complainant was provided with a

union representative. During the meeting, complainant explained to the

third-line supervisor that her supervisor had screamed at her in front of

others and had given incorrect information regarding 14-day payments to

other employees, two things that she felt were not appropriate. According

to the complainant, the third-line supervisor's demeanor and attitude was

such that he supported the supervisors. Complainant also explained to

the third-line supervisor that she sat quietly at her desk, did her work,

and did not bother anyone. In reply, the third-line supervisor stated,

"We always know that you're around." The complainant stated that when

she asked him to clarify his statement, he said, "This meeting is over

because we are not getting anywhere."

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); see also, 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(s)

proffered by the agency was a pretext for discrimination. Id. at 25.

Letter of Confirmation/Warning

In its final decision, the agency found that complainant was subjected

to discrimination on the bases of race, color, and reprisal when the

letter of confirmation/warning was issued.<4> Presumably, complainant

is not appealing those findings and, as such, those issues will not

be revisited here. The agency also found, however, that complainant

did not prove that she was discriminated against on the basis of age.

The Commission agrees.

As part of complainant's ultimate burden regarding her claim of age

discrimination, she must show that age was a determinative factor

in the discriminatory action. LaMontagne v. American Convenience

Products, Inc., 750 F.ed 1405, 1409 (7th Cir. 1984). In this case,

complainant was subjected to an adverse action (i.e., letter of

confirmation/warning) after conferring with a field representative

regarding a particular account. According to information contained in

the report of investigation, several Account Technicians had contacted

field representatives regarding particular accounts. Of those Account

Technicians, only complainant received a letter of confirmation/warning

for such actions. The technicians that were not disciplined, however,

ranged in age from 37 to 52. Thus, we are not persuaded that age played

a role in the issuance of the letter of confirmation/warning.

Harassment

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. 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 of Title VII

must be determined by looking at all 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, 510 U.S. 17 (1993).

By alleging that she was berated by her first-line supervisor in front

of co-workers and subjected to belittling and derogatory remarks by her

third-line supervisor, complainant is essentially alleging that she was

subjected to a hostile work environment and harassment. To establish a

prima facie case of hostile environment harassment, complainant must show

the existence of four elements: (1) she is a member of a 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.

Complainant contends that on May 31, 1995, her first-line supervisor

walked into her office and slammed some documents on her desk while

stating, "This is illegal and has to be addressed." Complainant also

contends that during a disagreement with her first-line supervisor in

a meeting with co-workers, the first-line supervisor yelled, "This is

insubordination . . . We are going to see [Chief, Financial Services]"

Finally, complainant contends that in a meeting with her third-line

supervisor, he stated that "We always know that you're around."

Regarding these incidents, the Commission finds that they are not

sufficiently severe to trigger a Title VII violation. Instead, the

statements of the alleged discriminating officials are nothing more than

mere offensive utterances.

Additionally, regarding complainant's race and color, we find that

complainant has failed to establish a prima facie case of harassment.

In submitting evidence to support her discrimination claim, complainant

did not show the existence of the third element because information

contained in the evidentiary record illustrates that staff members

outside of complainant's protected groups were subjected to similar

behavior from the first-line supervisor.<5>

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response thereto, and arguments

and evidence not specifically addressed in this decision, we AFFIRM the

final agency decision.

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).

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:

April 4, 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.

2 The Commission notes that, regarding this issue, the agency dismissed

age as a basis.

3 The investigative file indicates that complainant was correct in

handling the document at issue as a 14-day payment and the first-line

supervisor eventually had another staff meeting to clarify her own

instructions.

4 In accordance with the finding of discrimination, the letter of

confirmation/warning was destroyed and expunged from all records;

complainant's performance appraisal for the period ending June 30, 1995

was amended to delete any reference to the May 22, 1995 incident; the

first-line supervisor was provided training in the areas of supervision,

equal opportunity, and diversity; and a notice was posted, in conspicuous

places and for a period of six months, informing employees of prohibited

practices and rights under Title VII. The Commission notes that

complainant did not request compensatory damages.

5 Three sworn statements were provided wherein one account technician

(Caucasian, White, age 49) testified that the first-line supervisor

threw documents at him; another (Hispanic, Red, age 41) testified that

she was yelled at by that same official; and finally, another technician

(Pacific Islander, Brown, age 41) testified that the first-line supervisor

yelled at her, sometimes using profanity.