Jennifer L. Kinslow, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy (Marine Corps Systems Command), Agency.

Equal Employment Opportunity CommissionDec 8, 2000
01a03504 (E.E.O.C. Dec. 8, 2000)

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).