0120080852
07-17-2009
Glenda F. Stewart, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Glenda F. Stewart,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120080852
Hearing No. 150-2006-00132X
Agency No. 8I1M04033
DECISION
On December 1, 2007, complainant filed an appeal from the agency's October
29, 2007 final order concerning her equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as an Air Reserve Technician ("ART")1 for the Department of the Air
Force in its 919th Special Operations Wing at Eglin Air Force Base
in Florida. On November 2, 2004, complainant filed an EEO complaint
alleging that she was discriminated against and harassed on the bases
of race (African-American) and sex (female)2 when:
(1) On April 9, 2004, complainant's skill codes were not updated upon
her request, while others received expedited service;
(2) On June 23, 2004, she was required to perform strenuous mail room
duties;
(3) On June 25, 2004, she was required to move her belongings into the
mail room and her extra duties were terminated;
(4) On July 11, 2004, she was treated less favorably than a male co-worker
during reclassification of positions; and
(5) On November 3, 2004, she was qualified, but not considered for a
promotion to the Workgroup Manager's position.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on November 7, 2006 and
issued a decision on September 14, 2007.
In the case at bar, the AJ found that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the AJ found the following: as to issue (1) concerning the updating
of skill codes, the agency reviewed complainant's request relatively
quickly in comparison with her White, male co-worker's (C1) request.
The agency additionally explained that after conducting the review
of complainant's request, it concluded that the proper "skill codes"
(335 and 344) were already in complainant's Civilian Brief, and she was
not entitled to additional (2210) skill codes. In sum, complainant and
C1 were treated the same as they were both credited with the same skill
codes. Addressing issue (2), the agency explained that complainant,
C1, and her White female co-worker (C2) were all responsible for mail
room duties, none of which were overly strenuous (unless you were
injured), and that the three of them provided assistance when able.
When C2 became injured complainant was required to help more than she
had helped in the past. According to complainant, when C2 returned, she
no longer had to cover for her. With respect to issue (3) involving the
alleged taking away of duties from complainant, complainant's supervisor
(S1) articulated that C1 and complainant were treated the same in that
when S1 got tired of the bickering over who should be performing which
duties (outside of the employees' position descriptions), she decided
to perform all the duties herself. As to the claim concerning moving
her belongings to the mail room, S1 testified that C2 was also asked
to move into the mail room, therefore, the two were treated equally.
In any event, complainant refused the instruction to move her belongings
there, and admits that she received no discipline for such refusal.
As to issue (4), the AJ found that the agency indicated that it followed
regulations in this process of reclassification, and that complainant
was not eligible for the position which C1 obtained because she was
already a GS-7. Therefore, this would have been a lateral assignment,
not a promotion. As to issue (5), complainant was not selected for the
position in question because she was not among the top three candidates
based on the score she received. Moreover, complainant failed to
show that she had plainly superior qualifications as compared with the
selectee's qualifications. Although complainant asserted that she would
have been selected if her skill codes had been updated, the AJ noted
that this argument had been previously discounted. The AJ found that
complainant presented no evidence that the agency's reasons are pretexts
for discrimination.
The AJ then addressed complainant's claim that these incidents, taken
together, constituted race and sex-based harassment. The AJ found
that complainant did not show that the conduct at issue was severe or
pervasive enough to be unlawful, nor did she show that the agency's
actions were motivated by her membership in a protected group. The AJ
found no discrimination. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
Complainant makes no arguments on appeal. The agency reiterates its
position that the AJ's decision was correct. Pursuant to 29 C.F.R. �
1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is
defined as "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding regarding whether or not discriminatory intent existed is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982). An AJ's conclusions of law are subject to a de novo standard
of review, whether or not a hearing was held. An AJ's credibility
determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence
so contradicts the testimony or the testimony so lacks in credibility
that a reasonable fact finder would not credit it. See EEOC Management
Directive 110, Chapter 9, � VI.B. (November 9, 1999).
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate
reason offered by the employer was not its true reason, but was
a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Here, assuming complainant could establish a
prima facie case of discrimination on the alleged bases, the agency has
articulated legitimate, nondiscriminatory reasons for all of its actions.
The conclusion that complainant did not establish pretext, is supported
by substantial evidence in the record.
As to the harassment claim, we note that in order for harassment to
be considered as conduct in violation of the laws that the Commission
enforces, it must be pervasive or severe enough to significantly and
adversely alter the conditions of the victim's employment and create
an abusive working environment. Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993). The conduct in question is evaluated from the standpoint
of a reasonable person, taking into account the particular context in
which it occurred. Highlander v. K.F.C. National Management Co., 805
F.2d 644 (6th Cir. 1986). The Commission notes that unless the conduct
is very severe, a single incident or group of isolated incidents will
not be regarded as discriminatory harassment. Walker v. Ford Motor Co.,
684 F.2d 1355, 1358 (11th Cir. 1982). Here, the alleged harassment is
simply not severe or pervasive enough to be considered unlawful. Like the
AJ, we also find no persuasive evidence that the agency's actions were
motivated by complainant's membership in a protected group. Based on a
thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
________07/17/09__________
Date
1 As an ART, complainant holds both a military position in the rank
of Technical Sergeant and the civilian position, GS-344-05 Management
Assistant.
2 Complainant initially alleged age discrimination as well, but withdrew
this basis at the hearing, as well as some additional claims which she
had previously raised.
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0120080852
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080852