01971341
10-27-1999
Joyce A. Roy, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency,
Joyce A. Roy, )
Appellant, )
) Appeal No. 01971341
v. ) Agency No. BIA-95-012
)
Bruce Babbitt, )
Secretary, )
Department of the Interior )
(Bureau of Indian Affairs), )
Agency, )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her allegation that the agency violated 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 accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
appellant based on sex and age (57) between August 1992 and June 1994
when:
(1) the Minneapolis Area Special Officer initiated a review of the Red
Lake, Minnesota Police Department's Law Enforcement Program;
(2) her supervisor (the Responsible Official, RO) refused to assist her
in the investigation of a homicide;
(3) a sexual harassment complaint she registered was not properly
acted upon;
(4) the RO found one of the work schedules she prepared unacceptable
and thereafter initiated a different schedule;
(5) she received a humiliating birthday card from the RO and two other
employees;
(6) she was issued a memorandum stating she could not use her personal
vehicle for official travel;
(7) she received a rating of �3� in the report writing element of her
1993 performance evaluation;
(8) the RO gave assignments directly to appellant's subordinates without
informing her;
(9) the RO, in informing her that a file was not in order, intimidated
her by waving his arms and becoming loud;
(10) her request for 15 minutes of leave was disapproved and she was
told she would be charged one hour of Leave Without Pay if she did not
submit a leave request for one hour;
(11) her travel voucher was disapproved by the RO even though she had an
approved travel authorization for use of a privately owned vehicle; and,
(12) she received a fax which, among other things, relieved her of
her supervisory duties because she was about to retire.
BACKGROUND
During the period in question, appellant was employed as a Supervisory
Criminal Investigator, GS-1811-12, with the Red Lake, Minnesota Police
Department.<0> Appellant filed a formal complaint in June 1994 in which
she alleged discrimination with regard to what have been identified as
Issues 1 through 12. Following an investigation, appellant did not
request an administrative hearing and the agency thereafter issued a
final decision (FAD) in October 1996. The FAD found sex discrimination
with regard to Issues 6, 7, and 11, and no sex or age discrimination
with regard to the remaining issues. As relief, the FAD provided, among
other things, the upgrade of a portion of appellant's 1993 performance
appraisal, reimbursement for travel expenses, and an opportunity for her
to provide evidence in support of her claim for compensatory damages.
It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
Issues 2, 5, 8, and 9
Because the agency found discrimination with regard to Issues 6, 7, and
11, the only issues before the Commission are Issues 1-5, 8-10, and 12.
Although the FAD treated the latter issues as separate allegations of
discrimination, our review of the record reveals that several of these
issues (2, 5, 8, and 9) are more properly viewed as allegations in support
of what appellant has characterized as harassment by the RO based on her
age and sex. Accordingly, the Commission will address those issues in
the context of appellant's harassment allegation.
It is well-settled that harassment based on an individual's sex and/or
age is actionable when that harassment is �so �severe or pervasive' as to
�alter the conditions of the victim's employment and create an abusive
working environment.'� Faragher v. City of Boca Raton, 524 U.S. 775,
118 S.Ct. 2275, 2283 (1998) (quoting Meritor Savings Bank FSB v. Vinson,
477 U.S. 57, 67 (1986)). The Commission initially finds appellant has
not demonstrated that there is any connection between the RO's actions
and her age. The Commission does find, however, that appellant has
established a connection between the challenged actions and her sex.
We also find that the RO's behavior was sufficiently severe and pervasive
to create a hostile and abusive working environment. In support of these
findings, the record is replete with evidence that the RO routinely
treated appellant worse than he treated male employees. For example,
with regard to the events in question in Issues 6, 7, and 11, the FAD
premised its findings of discrimination on its determination that the
RO treated males more favorably in similar situations and was unable to
offer credible explanations for the disparate treatment.
We find that the incidents in support of appellant's harassment claim
support a similar conclusion. In particular, the incident set forth
in Issue 9, i.e., the RO angrily confronting appellant about a file,
appears to have been typical of his behavior towards her, and there was
testimony indicating that the RO frequently yelled and swore at appellant.
Similarly, regarding the incident set forth in Issue 2, the RO not
only offered conflicting reasons why he refused to assist appellant in
investigating the homicide, but there is evidence indicating that he
readily assisted male investigators who made requests for assistance.
The most compelling piece of evidence in support of appellant's claim is
the birthday card she received from the RO and two other male employees.
The card stated, �We would like to wish you a professional, dignified
birthday by slapping the tune to �Happy Birthday' on our butts with
our pants around our ankles.� Evidence of record revealed that the RO
did not routinely give his male subordinates birthday cards, and that,
in effect, he singled appellant out in giving her this card. Based on
the foregoing, the Commission finds that appellant was subjected to
sex-based harassment by the RO.
Issues 1, 3, 4, 10, and 12
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that the
legitimate reason articulated by the agency was not its true reason, but
was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). This analysis is equally applicable to claims brought
under the ADEA. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
Assuming appellant can establish a prima facie case of discrimination with
regard to these issues, we find that the agency articulated legitimate,
nondiscriminatory reasons for the challenged actions. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). We find further
that appellant has not established that these reasons are pretextual. See
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Accordingly,
the Commission agrees with the FAD's determination that appellant has
not established discrimination with regard to these five issues.
CONCLUSION
It is the decision of the Commission to MODIFY the FAD and find appellant
has established discriminatory harassment with regard to the incidents
set forth in Issues 2, 5, 8, and 9, and find she has not established
discrimination with regard to Issues 1, 3, 4, 10, and 12.
ORDER
The agency is ORDERED to take the following actions within ninety (90)
days of the date this decision becomes final:
(1) The agency shall rescind the August 9, 1993, memorandum regarding
the use of a personal vehicle for official travel and expunge all
official records;
(2) The agency shall change appellant's rating of record on her 1993
performance appraisal to reflect Level Four on the performance element
relevant to report writing. If appropriate, the agency shall change
appellant's overall summary rating to reflect the change.
(3) Should the agency upgrade appellant's 1993 performance appraisal to
a higher level, and providing that appellant is entitled to any monetary
awards, the agency will grant such awards to appellant;
(4) The agency shall reimburse appellant for travel expenses associated
with the use of her privately owned vehicle for 520 miles for the business
trip she took on February 17, 1994;
(5) The agency shall provide training to the RO regarding his
responsibilities under Title VII.
(6) The agency shall conduct a supplemental investi-gation to
determine whether appellant is entitled to compensatory damages for the
harassment she experienced between December 1992 and March 16, 1994.
The agency shall allow appellant to present evidence in support of her
compensatory damages claim.<0> Appellant shall cooperate with the agency
in this regard. Thereafter, the agency shall issue a final decision. 29
C.F.R. �1614.110. The supplemental investigation and issuance of the
final decision must be completed within sixty (60) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Red Lake, Minnesota Police
Department copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant. If
the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant has the right to
file a civil action on the underlying complaint in accordance with the
paragraph below entitled "Right to File A Civil Action." 29 C.F.R. ��
1614.408 and 1614.409. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. � 2000e-16 (Supp. V 1993). If the appellant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint. 29
C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by
the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of
this decision becoming final. The agency shall then process the claim
for attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive
this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you
receive a timely request to reconsider filed by another party. Any
argument in opposition to the request to reconsider or cross request to
reconsider MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to
reconsider. See 29 C.F.R. �1614.407. All requests and arguments must bear
proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions
have interpreted the Civil Rights Act of 1991 in a manner suggesting
that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS
from the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY 30
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision on
your complaint. 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 (Z1092)
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:
10-27-99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of the Interior, Bureau of Indian Affairs, Red Lake,
Minnesota Police Department, supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The Department of the Interior, Bureau of Indian Affairs, Red Lake,
Minnesota Police Department, has been found to have discriminated against
an employee by harassing her based on her sex. The agency has been
ordered to determine whether the employee is entitled to compensatory
damages and to provide training for the responsible management official.
The Department of the Interior, Bureau of Indian Affairs, Red Lake,
Minnesota Police Department, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The Department of the Interior, Bureau of Indian Affairs, Red Lake,
Minnesota Police Department, will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_____________________________
Date Posted: _____________________
Posting Expires: __________________
29 C.F.R. Part 1614
01 Appellant retired from that position in 1994.
0
2 In order to assess the claim, the agency shall request from
appellant evidence of and testimony establishing any pecuniary and
non-pecuniary injury suffered and its link to the agency's retaliatory
actions. See Feris v. Environmental Protection Agency, EEOC Appeal
No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request
No. 05950936 (July 19, 1996); Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993); Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994).