01976877
11-03-1999
Juanita Hill, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (Centers for Disease Control and Prevention), Agency.
Juanita Hill, )
Appellant, )
)
v. ) Appeal No. 01976877
) Agency No. CDC-NCEH-037-96
Donna E. Shalala, )
Secretary, )
Department of Health )
and Human Services, )
(Centers for Disease Control )
and Prevention), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from a final agency decision (FAD) concerning her
equal employment opportunity (EEO) complaint, alleging discrimination
on the bases of race (Black), and reprisal (prior EEO complaints),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960.001.
The issue presented is whether appellant has proved, by a preponderance of
the evidence, that she was discriminated against on the above-referenced
bases and harassed on the basis of reprisal when:
1. On March 31, 1995, she was notified that her position would be
changed from Supply Clerk, GS-2005-4 to Wage Grade Packer, WG-7002-5,
effective April 16, 1995;
2. As a result of a job audit in 1994, her salary and locality pay
would be decreased effective April 16, 1995; and
3. She was assigned to a hazardous work environment.
During the relevant time, appellant had requested an audit to determine
what her title, series, and grade should be. The auditor determined
that her position had been misclassified as a Supply Clerk and should
have been a Wage Grade Packer at the GS-5 level. Technically, this
would have been a promotion, but appellant would actually make less
money because Wage Grade positions do not receive locality pay.
The Deputy Director (DD), who was named as a discriminating official in
two of appellant's prior complaints, discouraged the personnel office
from making the change. The personnel office agreed to leave appellant's
position in the GS category and consequently it was not changed.
Appellant also requested that the Office of Safety and Health
Administration (OSHA) investigate the safety of the building she was
required to enter daily to perform part of her work duties. The building
(Building 5) had previously been cited by OSHA as unsafe and hazardous,
but the record shows that appellant received letters from OSHA in February
and March 1994 stating that the results of their investigation showed an
asbestos level below the applicable OSHA standard, that the items cited
by OSHA had been corrected and that the building was safe to enter for
the purpose of conducting her work. The Branch Chief, who was named in
two of appellant's prior EEO complaints, stated that appellant was not
required to go back into the building until written documentation was
received from OSHA stating that the building was safe.
Nevertheless, believing that she was a victim of discrimination, appellant
sought EEO counseling and, subsequently, filed a formal complaint of
discrimination on September 4, 1996. The agency accepted the allegations
and complied with all of our procedural and regulatory prerequisites. At
the conclusion of the investigation, appellant was provided a copy of
the investigative
report but did not request a hearing within 30 days. The agency thereupon
issued a FAD finding no discrimination, since it determined that appellant
did not establish a prima facie case of disparate treatment or reprisal.
Appellant now appeals the FAD.
On appeal, appellant makes many contentions, chief among them that there
was no documentation from OSHA stating that Building 5 was safe prior
to August 22, 1997, that she started to experience severe breathing
problems during August 1994 as a result of having to work in Building 5,
that the agency was not using her base salary to establish her correct
pay for 1995, 1996, and 1997, and that, consequently, she was cheated out
of $1,212 from her adjustment pay and locality pay for 1995. The agency
did not respond to appellant's contentions on appeal.
In applying the analytical framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F. 2d 222 (1st Cir. 1976) (applying the framework to cases of reprisal)
we agree with the agency that appellant is unable to prove that she
was discriminated against on any basis, but for reasons different than
those given by the agency. As to appellant's contention that she was
discriminated against on the basis of race, we find that she fails
to state a claim with regard to the first two complaint issues, since
these were proposed personnel actions that can be dismissed under EEOC
Regulation 29 C.F.R. �1614.107(e). While the third issue does state a
claim, appellant cannot establish a prima facie case because she cannot
show that she was subjected to adverse treatment or otherwise harmed
by assignment to work in Building 5. In this regard, the record shows
that once the agency was notified of the potentially unsafe condition,
appellant was not required to enter the building in question until
the agency received written documentation from the Office of Safety and
Health Administration (OSHA) stating that the asbestos level was below the
applicable OSHA safety standard and that the items cited by OSHA as unsafe
had been corrected. In addition, other employees entered the building to
assist appellant once it was deemed safe. Finally, appellant presented
no documentation to the agency indicating that her health was adversely
affected by her job assignment once the building was deemed safe.
While we find that appellant does state an harassment claim with regard
to all three complaint issues on the basis of reprisal, nevertheless we
find that she is unable to establish a prima facie case of harassment,
since the record shows that appellant did not have her position changed or
salary decreased, nor was she forced to work in a hazardous environment.
Hence, the harassment claimed was not shown to be sufficiently severe
or pervasive to alter the conditions of appellant's employment so as to
create a hostile work environment. See Jackson v. United States Postal
Service, EEOC Appeal No. 01972555 (April 15, 1999); Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Compliance Manual, Volume 2,
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
it is the decision of the EEOC to AFFIRM the agency's final decision in
this matter as MODIFIED.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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:
November 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations