01a03504
12-08-2000
Jennifer L. Kinslow, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy (Marine Corps Systems Command), Agency.
Jennifer L. Kinslow v. Department of the Navy
01A03504
12-08-00
.
Jennifer L. Kinslow,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy
(Marine Corps Systems Command),
Agency.
Appeal No. 01A03504
Agency Nos. 96-47498-002; 98-47498-004
Hearing Nos. 100-98-7892X; 100-98-7893X
DECISION
On April 7, 2000, Jennifer L. Kinslow (hereinafter referred to as
complainant) filed a timely appeal from the February 29, 2000, final
decision of the Department of the Navy (Marine Corps Systems Command)
(hereinafter referred to as the agency) concerning her 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., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq. The appeal is timely filed (see 29 C.F.R. � 1614.402(a))<1>
and is accepted in accordance with 29 C.F.R. � 1614.405. For the reasons
that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the bases of race/color, sex, national origin (African American),
and age (42), and in reprisal for prior EEO activity with regard to
two performance appraisals and the actions of her former supervisor in
1996-1997.
Complainant filed two complainants of discrimination in August 1996 and
November 1997. Following an investigation, she requested a hearing before
an EEOC Administrative Judge (AJ). The AJ held a hearing in December 1999
and issued her decision on February 15, 2000, dismissing one allegation
and finding that the agency did not discriminate against complainant.
The agency issued a Final Order, adopting the AJ's decision.
At the time of the complaint herein, complainant worked as a Procurement
Analyst. In her complaints, she alleged:
she was rated fully successful on a close-out performance appraisal for
the eight-month period ending April 1996;<2>
she was rated exceeds fully successful, having been rated fully successful
on two critical elements, for the five-month period ending June 1997; and
her former supervisor (S1) harassed/followed/stalked her for four months
during the summer and fall of 1997.
The agency stated that the close-out appraisal was a temporary document
prepared for an employee at the end of a discrete assignment and upon
transfer to a new supervisor. As such, it was not placed in complainant's
permanent records or official personnel file. With regard to both
appraisals, the agency stated that complainant merited the ratings based
on her work performance. As to the close-out appraisal, the AJ dismissed
the matter, finding that it failed to state a claim. The AJ found that,
in regard to the second appraisal, the agency articulated legitimate,
nondiscriminatory reasons for its actions and that complainant did not
show that others similarly situated to her were treated more favorably
or that her ratings were based on discriminatory factors.
In August-September 1997, complainant complained to her supervisor
(S2) that S1 was bothering her. S2 reported these allegations to S1's
immediate supervisors, who removed S1 from complainant's work area,
assigned complainant to a private office, and excluded S1 from meetings
which she attended. The AJ found that complainant's allegations did not
establish a prima facie case and that, even if so, were not sufficiently
severe to create an abusive work environment or alter the conditions of
her employment. Finally, the AJ found that management took immediate
corrective action in response.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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). 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).
After a review of the record in its entirety, the Commission affirms
the decision of the AJ. With regard to the two appraisals, we find
that complainant has not shown the agency discriminated against her on
any bases, in that, in response to the agency's articulation, she failed
to demonstrate that either appraisal was based on discriminatory animus.
As to the harassment charge, we agree with the AJ that the incidents cited
by complainant were not sufficiently severe such that the conditions of
the workplace changed or that they interfered with complainant's work
performance. See, generally, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999).
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
__12-08-00________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Initially, the agency dismissed this issue on the grounds that
complainant failed to state a claim, but, upon appeal, the matter was
remanded to the agency for continued processing. EEOC Appeal No. 01970318
(September 2, 1997).