Gladys Moore, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 16, 2002
01A15299 (E.E.O.C. Apr. 16, 2002)

01A15299

04-16-2002

Gladys Moore, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Gladys Moore v. Department of the Army

01A15299

April 16, 2002

.

Gladys Moore,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A15299

Agency Nos. DAY97AR0021E, DAY98AR0420E

Hearing No. 280-99-4183X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint 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.

The record reveals that, during the relevant period, complainant

was employed as a GS-326-05, Office Automation Assistant at the

agency's Logistics Systems Support Center, Administrative Division

facility in St. Louis, Missouri. The record reflects that on March

20, 1996, complainant's position was audited by the agency's Personnel

Classification Specialist (PSC). PSC's audit resulted in a noncompetitive

promotion for complainant to the GS-303-06 position of Resource Assistant

(Office Automation). Complainant's promotion became effective May

26, 1996.

Complainant contends that S1 inaccurately described her duties and that,

as a result, she only received a promotion to the GS-6 grade level instead

of the GS-7 grade level. Complainant also contends that the designation

of her job series as �303� was incorrect, and that her title should have

been Training Technician or Training Development Specialist. In support

of this contention, complainant states that, pursuant to S1's request,

she assumed some the duties of a Training Technician that had retired

from the agency. Complainant explained the additional duties that she

was performing to PSC during the audit process.

In conducting the audit of complainant's position, PSC states that

she considered: the position description provided by S1, her personal

discussions with complainant wherein complainant described her duties

and responsibilities; and work samples provided by complainant in order

to ultimately determine a grade and series. PSC stated that complainant

performed clerical, administrative and training duties, none of which

was more dominant than the rest. PSC contends that she decided to use

the 303 job series because it that was a general job series designated

for Miscellaneous Clerks and Assistants.

In addition, PSC states that in order for complainant to qualify for a

training job series, she is required to have specialized knowledge of

training responsibilities that she did not have. After reviewing the

level of complainant's responsibilities, PSC performed a formal evaluation

and complainant's duties matched up with the description of a GS-6

grade level. PSC issued a written report based on the results of the

desk audit and concluded that complainant's GS-5 position involved GS-6

job duties, and accordingly, she recommended complainant for an upgrade.

On May 26, 1996, S1 promoted complainant to a GS-6 due to an accretion

of duties procedure.

Complainant contends that following the desk audit S1 stated that her

job would never be a GS-7 grade level, and that if it were she would have

to compete for it. Complainant also contends that S1 told her that she

had hurt a lot of people with her prior EEO complaint.

In regard to complainant's second claim of reprisal, complainant

states that in July 1997, she was supervised by a new team leader (S2).

Complainant contends that on one occasion, S2 was rude, gave her orders

and talked down to her. Complainant states that she did not like the

tone of voice utilized by S2. The record reflects that on September 17,

1997, complainant overheard S1 telling S2 that she should be careful

of complainant. Complainant also overheard S1 tell S2 that complainant

frequently challenged authority.

Complainant contends that S2 began taking away some of complainant's

duties and began assigning her menial, administrative tasks.

Complainant also contends that S2 began attending meetings regarding

training functions instead of sending complainant. Complainant further

contends that S2 would only communicate with her by leaving notes for

her on her desk.

Complainant sought EEO counseling and filed a formal EEO complaint on

May 23, 1996, alleging that the agency had discriminated against her on

the basis of reprisal (prior EEO activity under Title VII) when:

(1) a desk audit did not result in a promotion to a GS-7 in May 1996, and

her supervisor (S1: prior EEO activity) and team leader harassed her and

made negative comments about her job performance on September 17, 1997.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

Although the AJ concluded that complainant established a prima facie

case of reprisal discrimination, she concludes that complainant did

not establish a causal connection between her prior protected activity

and not being promoted to a GS-7. Specifically, the AJ found that:

complainant engaged in prior protected activity; management was aware

of the protected activity; and complainant was adversely affected when

she was not promoted to a GS-7.

The AJ also concluded that the agency articulated legitimate,

nondiscriminatory reason for concluding that complainant was functioning

as a GS-303-6, Resource Assistant (Office Automation). The AJ found

that the agency followed standard, established agency procedures for

conducting the desk audit of complainant' s position and matching

complainant's responsibilities with a job series and grade level.

In regard to complainant's harassment claim, the AJ concluded that

complainant failed to establish a prima facie case. In particular, the

AJ found that complainant failed to show that S2 was aware of her prior

protected activity. The AJ also found that complainant did not show

that the incidents were sufficiently severe that they 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 working environment.

The agency's FAD implemented the AJ's decision. Complainant makes no

new contentions on appeal, and the agency requests that we affirm its FAD.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case. If a case

can only be resolved by weighing conflicting evidence, summary judgment

is not appropriate. In the context of an administrative proceeding,

an AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

Although the initial inquiry of discrimination 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 s/he 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).

In determining whether a harassment complaint states a claim in cases

where a complainant had not alleged disparate treatment regarding a

specific term, condition, or privilege of employment, the Commission

has repeatedly examined whether a complainant's harassment claims,

when considered together and assumed to be true, were sufficient to

state a hostile or abusive work environment claim. See Estate of

Routson v. National Aeronautics and Space Administration, EEOC Request

No. 05970388 (February 26, 1999).

Consistent with the Commission's policy and practice of determining

whether a complainant's harassment claims are sufficient to state a

hostile or abusive work environment claim, the Commission has repeatedly

found that claims of a few isolated incidents of alleged harassment

usually are not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Health and Human Services, EEOC Request No. 05940481

(February 16, 1995). Moreover, the Commission has repeatedly found that

remarks or comments unaccompanied by a concrete agency action usually are

not a direct and personal deprivation sufficient to render an individual

aggrieved for the purposes of Title VII. See Backo v. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United

States Postal Service, EEOC Request No.05940695 (February 9, 1995).

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).

The Commission finds that the agency has articulated a legitimate

nondiscriminatory reason for its actions. Specifically, we find that

the record establishes that the desk audit conducted by PSC followed

standard procedures. The record shows that all of the duties and

responsibilities complainant contended justified a promotion to the

GS-7 level were considered and part of a written evaluation by PSC.

In addition, the record does not reflect that S1 and/or S2 influenced

or manipulated the desk audit. In point of fact, at the conclusion of

the desk audit complainant was promoted to a GS-6.

The Commission also finds that complainant has not presented sufficient

evidence to support a claim of hostile working environment and/or

harassment. The fact that complainant's supervisor wrote notes as

opposed to speaking to her directly is not severe and/or pervasive

conduct. In fact, the uncontroverted record shows that S2 began writing

notes only after complainant was rude to her on several occasions.

The record also shows that complainant's former team leader permitted

complainant to perform many of his duties, but S2 preferred to perform

her responsibilities herself. Furthermore, the record shows that S2 was

more �hands on� than complainant's former team leader and complainant

did not like the close supervision.

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. Under these circumstances,

and after a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's protected classes.

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

April 16, 2002

__________________

Date