01974178
09-02-1999
Dorothy M. Thrower, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (United States Coast Guard), Agency.
Dorothy M. Thrower, )
Appellant, )
) Appeal No. 01974178
v. ) Agency Nos. 93-0110
) 95-0014
Rodney E. Slater, ) Hearing Nos. 100-95-7782X
Secretary, ) 100-95-7791X
Department of Transportation, )
(United States Coast Guard), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) 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. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that appellant, a GS-080-11 Security Specialist at
the agency's headquarters facility in Washington, D.C., filed formal
EEO complaints with the agency on December 2, 1992, (Complaint 1)
and August 24, 1994, (Complaint 2). The agency's initial attempts to
dismiss Complaint 1 on procedural grounds were reversed. See Thrower
v. Department of Transportation, EEOC Appeal No. 01932022 (April 30,
1993). The agency's dismissal of a portion of Complaint 2, however, was
affirmed by the Commission. See Thrower v. Department of Transportation,
EEOC Appeal No. 01950406 (March 28, 1995). Ultimately, appellant
requested, and a hearing was conducted, before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ). Prior to the
hearing, the AJ consolidated the complaints, and set forth the issues
as follows:
Complaint 1
Whether the agency discriminated against appellant on the bases of race
(Black) and in reprisal for her prior EEO activity:
by harassing her through verbal abuse and attempts/threats to abolish
her position; and through statements made during a meeting of only Black
employees on August 25, 1992;
by assigning her duties not in her position description; and
by providing her less formal training than other employees in the Office
of Law Enforcement & Defense Operation, Investigation & Security Division.
Complaint #2
Whether the agency discriminated against appellant on the basis of race
(Black):
by subjecting her to verbal abuse and harassment on June 9, 1994, and
June 21, 1994;
on June 7, 1994, when the agency transferred her duties to a GS-8 level
employee;
on June 7, 1994, when the agency issued her an unfair �proficient� rating
on her annual performance appraisal; and
in August of 1994, when the agency denied her a performance award related
to her �proficient� appraisal rating.
Following a hearing, the AJ issued a Recommended Decision (RD) finding
no discrimination.<1> In addressing appellant's allegations of racial
and retaliatory harassment, the AJ concluded that the above-referenced
actions, either alone or together, were not sufficiently severe or
pervasive so as to create a hostile work environment. In reaching this
conclusion, the AJ first observed that the actions of the Chief Warrant
Officer (CHIEF), appellant's supervisor, were not motivated by racial or
retaliatory animus. The AJ noted that both Black and White employees
found the CHIEF to be loud, lacking in tact, and at times abusive.
In this respect, the AJ noted that appellant's second level supervisor
(MGR) (White) alleged that the CHIEF physically assaulted him on one
occasion, and that upper management did not adequately investigate
the CHIEF's conduct. The AJ found credible the CHIEF's testimony
that appellant's unwillingness to communicate with him about various
work-related issues resulted in heated words between them. The AJ
also found, contrary to appellant's allegations, that the agency's
reorganization and downsizing efforts more likely than not motivated its
proposals to abolish, transfer or otherwise change appellant's position.
Concerning a meeting on August 25, 1992, where the CHIEF discussed
EEO allegations of disparate treatment against him with only his Black
subordinates, and at which the CHIEF allegedly told appellant �you're
my biggest problem,� the AJ found that while this statement may have
indicated that the CHIEF harbored some racial and retaliatory animus,
that incident was isolated and thus insufficient to create a hostile
work environment. The AJ further noted that no concrete action occurred
as a result of the meeting, and that appellant was thus not aggrieved
by the CHIEF's actions and statements at the meeting.
Concerning appellant's disparate treatment allegations, the AJ found
no evidence to support allegations that work assignments were added
or taken away for discriminatory or retaliatory reasons. Contrary to
appellant's allegations, the AJ found that in assigning additional
typing to appellant on a few occasions, the CHIEF was ensuring that
time-sensitive work was completed when clerical staff was absent or
otherwise unavailable. Concerning the alleged lack of training, the AJ
noted that the agency determined who attended training courses based on
how the course corresponded with each employees' job responsibilities.
The AJ then found that while appellant may not have been initially
identified to participate in a specific seminar on or around the summer
of 1992, appellant spoke up, was identified, and ultimately did attend
the training course.
Concerning appellant's allegations that her duties were transferred to a
lower-graded employee, the AJ found that appellant's perception concerning
the reorganization was flawed, and that the lower-graded employee's
duties were largely administrative in nature. Contrary to appellant's
assertions, the lower-graded employee opened mail and forwarded more
substantial background check or security clearance assignments, on
an alphabetical basis, to appellant or her co-worker, and that other
correspondence with appellant concerning various background check or
security clearance assignments was administrative, and not supervisory,
in nature. Finally, concerning appellant's lowered performance appraisal
and subsequent denial of a cash award, the AJ found that appellant failed
to establish a prima facie case of discrimination because appellant's
alleged comparators were not similarly situated to her.
The agency's FAD adopted the AJ's RD. On appeal, appellant restates
arguments previously made at the hearing, and argues, among other things,
that the AJ failed to weigh the significance of the MGR's affidavit and
statements to the EEO Counselor that he believed appellant was a victim of
racial discrimination. The agency argues that the AJ considered this and
other arguments raised by appellant, and requests that we affirm its FAD.
After a careful review of the record, the Commission finds that, with some
clarification, the AJ's RD summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. The Commission agrees
with the AJ's assessment of the record as a whole, and her conclusions
that appellant failed to present evidence that any of the agency's actions
were in retaliation for appellant's prior EEO activity or were motivated
by discriminatory animus toward appellant's race. Concerning appellant's
allegations of disparate treatment when she received only a �proficient�
performance rating in 1994, the Commission notes that without addressing
the propriety of the AJ's conclusion that appellant failed to establish
a prima facie case, under the analysis set forth in United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711 (1983), the agency
articulated a legitimate, nondiscriminatory reason for the rating.
Specifically, the CHIEF stated that appellant's performance met the
agency's expectations, and that notwithstanding the CHIEF's advice to
appellant to propose new or more efficient methods of performing the
department's work in order to receive higher ratings, appellant made no
such recommendations during the applicable performance rating period.
Moreover, testimony in the record from appellant indicates that the agency
customarily did not propose cash awards for ratings below �meritorious.�
We also find that appellant failed to present evidence that more likely
than not, the CHIEF's articulated reason was a pretext, or that racial or
retaliatory animus resulted in a lowered performance rating or non-receipt
of a cash award.
Concerning appellant's harassment allegations, the Commission agrees with
the AJ's conclusion that the above-referenced actions, either alone or
together, were not sufficiently severe or pervasive to create a hostile
work environment. See Harris v. Forklift Systems, Inc, 510 U.S. 17, 21
(1993). In reaching this conclusion, the Commission first notes that
the AJ had the opportunity to observe the credibility and demeanor
of appellant, the CHIEF, the MGR, and the other witnesses, and the
Commission will not disturb the AJ's credibility determinations absent
clear error. See Esquer v. United States Postal Service, EEOC Appeal
No. 05960096 (September 6, 1996). Here, the agency demonstrated that
during the relevant time, appellant's department was dysfunctional,
largely as a result of a growing rift between the CHIEF and others in
the department. While appellant and others, including the MGR, clearly
felt threatened by the CHIEF's occasional unprofessional demeanor, the
record is insufficient to establish that racial or retaliatory animus
motivated the CHIEF's actions.<2> In this regard, we find that the
August 25, 1992 meeting conducted by the CHIEF, while unprofessional
and insulting to appellant and her Black co-workers, was not motivated
by racial or retaliatory animus, but by the CHIEF's desire to respond
to the MGR's concerns and address allegations that he treated his Black
employees differently. We further note that even assuming the CHIEF
stated to appellant during the meeting �you're my biggest problem,�
without more, does not rise to the level of unlawful interference with
the EEO process. Cf. Marr v. United States Postal Service, EEOC Appeal
No. 01941344 (June 27, 1996)(unlawful interference when manager attempted
to dissuade appellant from testifying as a witness in an EEO matter);
Lewis v. United States Postal Service, EEOC Appeal No. 01922440 (April 14,
1994) (unlawful interference when manager attempted to dissuade appellant
from filing EEO complaint). Moreover, this statement did not actually
dissuade appellant from filing EEO complaints. See Determan v. Department
of the Navy, EEOC Appeal No. 01961521 (June 5, 1998).
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM as CLARIFIED
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
September 2, 1999
DATE Carlton M. Hadden, Acting Director
1 The AJ's RD sets forth the facts, which will
not be repeated herein except where additional
clarification is required.
2 The Commission notes that the MGR's EEO Complaint resulted in a finding
of no discrimination, which was affirmed by the Commission. See Seidman
v. Department of Transportation, EEOC Appeal No. 01942176 (April 5, 1995).