01985767
02-09-2000
Gloria J. Hatcher, Complainant, v. Donna E. Shalala, Secretary, Department of Health & Human Services, Agency.
Gloria J. Hatcher v. Department of Health & Human Services
01985767
February 9, 2000
Gloria J. Hatcher, )
Complainant, )
) Appeal No. 01985767
v. ) Agency No. NIH-0423-95
)
Donna E. Shalala, )
Secretary, )
Department of Health & Human Services, )
Agency. )
_______________________________________)
DECISION
On July 22, 1998, the Equal Employment Opportunity Commission (Commission)
received an appeal from Gloria J. Hatcher (hereinafter referred to as
complainant) from a final decision of the agency concerning her complaint
of discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq.<1> The final agency decision
was received by complainant's attorney on June 29, 1998. Accordingly,
the appeal is timely filed, and is accepted in accordance with the
provisions of EEOC Order No. 960, as amended.
The issue on appeal is whether complainant proved, by a preponderance of
the evidence, that she was discriminated against on the basis of her race
(African-American), and in reprisal for prior EEO activity when she was
issued a letter of reprimand on November 8, 1994.<2>
Complainant filed a formal EEO complaint in March 1996, raising the
above-referenced allegation of discrimination. Thereafter, the agency
conducted an investigation of the matter at issue, and notified the
complainant of her right to either an administrative hearing or a final
agency decision in the matter. Complainant failed to timely respond
to the notice, and the agency issued a final decision dated June 23,
1998, finding that complainant had not been subjected to discrimination.
It is from this decision that complainant now appeals.
At the time of the matter at issue, the complainant was working as a
secretary at the agency's National Institutes of Health. On November 8,
1994, the complainant received a letter of reprimand charging her with
"unacceptable conduct" based upon three incidents. The complainant's
supervisor indicated that on September 29, 1994, the complainant
exhibited inappropriate and disrespectful behavior after she denied the
complainant's request to attend a lecture. Additionally, on the same
date, the complainant made a comment to a co-worker (Employee 1) which
was considered threatening. Specifically, while Employee 1 was getting
coffee, the complainant commented that slaves used to spit in or poison
their master's food. Finally, on October 12, 1994, the complainant made
an obscene gesture to another employee (Employee 2) under the guise of
having Employee 2 examine her finger for a cut.
The complainant's supervisor averred that the complainant had,
in the past, exhibited anger and hostility toward other employees.
The supervisor noted that, during a May 1994 meeting, the complainant's
representative and an EEO Officer commented on the complainant's
hostile tone and manner. The supervisor stated that, on September 29,
the complainant angrily interrogated her regarding her decision not to
allow the complainant to attend a lecture, despite not having provided
specific information concerning the content thereof. The complainant
also informed her supervisor that attendance at the lecture was a right
not a privilege. The supervisor noted that Employees 1 and 2 were upset
by the complainant's comment and gesture. The supervisor stated that
she discussed the matters with the Deputy Personnel Officer, who advised
her that the incidents were sufficiently egregious to warrant a written
reprimand. The Deputy Personnel Officer confirmed that the complainant's
supervisor consulted him with regard to the matters, stating that there
was no evidence that the supervisor or Employees 1 and 2 precipitated
the incidents. The Deputy Personnel Officer also noted that the Labor
Management Consulting Team concurred with the decision to issue a letter
of reprimand.
The complainant denied engaging in inappropriate behavior. She stated
that it was her supervisor who was hostile during the September 29
meeting. Further, the complainant indicated that the comment she
made to Employee 1, which occurred during a friendly discussion of
African-American history, was taken out of context. With regard to
Employee 2, the complainant noted that she did in fact have a cut on
her middle finger, which she displayed in an attempt to get Employee 2
to leave her work area.
Employee 1did not recall engaging in a conversation with the complainant
on September 29 prior to the complainant making the above-referenced
comment. He described the incident as being disconcerting, stating that
he questioned the safety of his food and drink. Employee 2 indicated
that while she was discussing a letter she had asked the complainant to
finalize, the complainant suddenly displayed her middle finger and asked
Employee 2 if she saw a cut. Employee 2 stated that the complainant had,
on a number of occasions, laughed at her and pointed a finger at her.
The complaint herein presents the issue of whether the agency subjected
the complainant to disparate treatment on the bases of her race and prior
EEO activity. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
provides an analytical framework for proving employment discrimination
in cases in which disparate treatment is alleged. First, complainant
must establish a prima facie case by presenting enough evidence to raise
an inference of discrimination. McDonnell Douglas, supra, at 802.
The agency may rebut complainant's prima facie case by articulating
legitimate, nondiscriminatory reasons for its action, and if the agency
does so, complainant must show, by a preponderance of the evidence,
that the agency's reasons are a pretext for discrimination. Id.
The Commission notes that while the agency stated, in part, that
complainant failed to establish a prima facie case because she did not
show that she was treated differently than similarly situated employees,
complainant must only present evidence which, if unrebutted, would support
an inference that the agency's actions resulted from discrimination.
O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,
EEOC Notice No. 915.002, n. 4 (September 18, 1996). Nevertheless, in
appropriate circumstances, when the agency has established legitimate,
nondiscriminatory reasons for its employment decision, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, that is, whether the complainant has proven by
preponderant evidence that the agency's explanations were a pretext for
actions motivated by prohibited discriminatory animus. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
In the case at hand, the agency stated that the complainant was issued the
letter of reprimand because of three incidents of unacceptable conduct.
As stated, the Deputy Personnel Officer found no evidence that the
complainant's supervisor, Employee 1, or Employee 2 precipitated the
events cited. Complainant has not shown that her supervisor acted
with discriminatory animus in issuing her the letter of reprimand.
Therefore, the Commission finds that complainant failed to prove,
by a preponderance of the evidence, that she was subjected to race or
reprisal discrimination.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to affirm the agency's final decision of
no discrimination based on race and prior EEO activity.
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:
02-09-00
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 of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
_________________________ __________________________
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.
2The complainant withdrew sex (female) as a basis for discrimination
during the investigation.