01a54364
11-16-2005
Kathy Whitfield, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Kathy Whitfield v. Department of the Army
01A54364
November 16, 2005
.
Kathy Whitfield,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A54364
Agency No. ARFTBENN03JUL00063
Hearing No. 110-2004-00436X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Custodial
Worker, WG-3566-03, at the agency's Martin Army Community Hospital,
Fort Benning, Georgia.
On October 9, 2003, complainant filed a formal EEO complaint claiming
that the agency discriminated against her on the bases of race
(African-American) and sex (female) when:
(1) on May 7, 2003, she was not allowed to work and get paid for
overtime;
(2) in 2003, she was not given a cash award; and
(3) was subjected to a hostile work environment when she was required to
work more floors than the male custodial workers, but was not compensated
for her services.
At the conclusion of the investigation, complainant received a copy of
the investigative report.
The report of investigation reflected that as a remedy, complainant
requested a cash award; assistance in cleaning; and that harassment cease.
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
In her decision, the AJ found that complainant established a prima
facie case of race and sex discrimination. The AJ, however, concluded
that the agency articulated legitimate, non-discriminatory reasons
for its actions. The AJ found that complainant failed to prove that
the agency's articulated reasons were a pretext for discrimination.
Regarding complainant's harassment claim (claim (3)), the AJ concluded
that complainant failed to establish a prima facie case of harassment
based on sex. The AJ found that complainant failed to establish that
she was subjected a hostile work environment, as the action alleged fail
to rise to the level of actionable harassment under the regulations.
Regarding claim (1), the record reflects that complainant's first-level
supervisor (S1) stated that on May 7, 2003, complainant was not permitted
to work overtime because she only wanted to work overtime in her work
area. Specifically, S1 stated that complainant's second-level supervisor
(S2) "made a decision not to do it in her area because we had other
things that [were] pressing . . . that we needed to do at that time."
Regarding claim (2), the record reflects that S1 stated that in 2003,
complainant did not receive a cash award because her ward did not
recommend complainant for a cash award. S1 acknowledged that complainant
received cash awards in prior years; however, S1 stated that the employees
identified by complainant received cash awards because "their wards put
them in for cash award because of the job that they're doing on their
particular floors."
Moreover, S2 stated that cash awards are recommended by the immediate
supervisor and that such recommendations go through various agency
channels for approval. S2 further stated that if S1 felt that complainant
deserved to receive a cash award, she would have received it.
Further, the record reflects that the Noncommissioned Officer-in-Charge
(NCOIC) of the 4th floor Inpatient Psychiatry stated that she did not
recommend that complainant receive a cash award but sent a letter
to S2 informing him that complainant was doing a good job on the
4th floor. NCOIC further stated "I just pretty much left it for her
supervisor to do the recommendation."
Regarding claim (3), the record reflects that S1 stated that complainant
was not subjected to a hostile work environment when she was assigned to
the 4th floor from the 6th floor; and was required to work more areas
on the 4th than the male custodial workers but was not compensated for
her services. S1 noted that the �A� side of the 4th floor is carpeted
and that the �B� side is the psychiatric care section that contains
patient care beds. S1 stated that on the �A� side, complainant's
sole assignments were "to pull trash, vacuum, and then do the bathroom
if they have bathrooms on that side . . . a couple offices may have
bathrooms." S1 stated that it did not take an exorbitant amount of time
to attend to the �A� side. S1 stated that on the �B� side, there was
somewhat more work because of the patient care beds. With respect to
complainant's argument that two other Custodians shared the 4th floor
before complainant was given that assignment, S1 stated that one of
the two Custodians (C1) who shared the assignment prior to complainant's
arrival was merely responsible for cleaning the 4th floor bathrooms and
sinks; and that C1 was ultimately assigned to work elsewhere.
The record further reflects that complainant's former Work Supervisor
stated that she did not feel that S1 subjected complainant to harassment.
The former Work Supervisor further stated that there was a personality
conflict between S1 and complainant. Specifically, the former Work
Supervisor stated that S1 and complainant "just couldn't get it together."
The former Work Supervisor stated "it's a lot of things that went
on wrong, and [complainant] knew about a lot of stuff that goes on,
and . . .it just seemed like she's trying to get him, and he's trying
to get her, and it never ends." Further, the former Work Supervisor
stated that it was a "continual thing, just go[es] on and on" between
S1 and complainant.
On April 22, 2005, the agency issued a final action implementing the
AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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)
(citation omitted). 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Disparate Treatment (claims (1) - (2))
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
With respect to claim (1), the Commission finds that the agency
articulated a legitimate, nondiscriminatory reasons for denying
complainant's request to work overtime in her work area on May 7, 2003.
Complainant has not shown that the agency's articulated reasons were a
pretext for discrimination. Therefore, we find that the agency's final
action implementing the AJ's finding of no discrimination regarding claim
(1) was proper and is AFFIRMED.
With respect to claim (2), the agency concluded that it articulated a
legitimate, nondiscriminatory reason for not giving complainant a cash
award in 2003, namely, her ward did not recommend complainant for a cash
award, and that complainant failed to demonstrated that more likely
than not, the decision not to give her a cash award was motivated by
discriminatory animus under any alleged basis. Upon review of the
record, the Commission finds that the agency has not articulated a
legitimate, non-discriminatory reason explaining why complainant was
not given a cash award in 2003. The agency may rebut a presumption of
discrimination by clearly setting forth, through the introduction of
admissible evidence, its reasons for not granting complainant a cash
award. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
254-255 (1981). The agency's explanation must be sufficiently clear to
raise a �genuine issue of fact� as to whether discrimination occurred.
Burdine, 450 U.S. at 254. Moreover, it must �frame the factual issue
with sufficient clarity so that [complainant] will have a full and fair
opportunity to demonstrate pretext.� Id. at 255-256.
With regard to claim (2), the agency failed to meet this burden .
It has not articulated a specific, clear, and individualized explanation
why complainant did not receive a cash award. It merely stated that
complainant's ward did not recommend that complainant receive a cash
award. This reason is so generalized, conclusory, and vaporous as to
offer no substantive explanation for the agency's action. We further
note that the NCOIC of complainant's reassigned floor sent a letter
to S1, informing him that complainant was doing a good job working
on the 4th floor; that before complainant arrived, the 4th floor was
"horrible;" and that after complainant was reassigned to her floor,
the Colonel inspected the 4th floor and said "my floor was one of the
best in the hospital."
Further, we note that complainant's former Work Supervisor stated that
she used to supervise complainant on the 4th floor; and that during the
relevant time she was not aware that employees received cash awards
because her supervisor, S1, did not tell her about it. We note that
the former Work Supervisor testified that if S1 had informed her of the
cash awards, she would have recommended complainant for a cash award.
We note that the Work Supervisor testified that complainant was more
deserving of receiving a cash awards than other Custodial Workers.
Having established a prima facie case of race and sex discrimination,
complainant prevails on claim (2) without having to make any demonstration
of pretext. See Young v. Department of the Treasury, EEOC Request
No. 05940517 (October 13, 1995) (discrimination found where agency's
failure to adequately explain its non-selection deprived complainant of
a fair opportunity to demonstrate pretext.
Therefore, we REVERSE the agency's final action implementing the AJ's
finding of no discrimination regarding claim (2). Claim (2) is REMANDED
to the agency for further precessing in accordance with the ORDER below.
Harassment (claim (3))
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
It is also well-settled that harassment based on an individual's prior
EEO activity is actionable. Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group
of isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all of
the circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The harassers' conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant failed to show that she was subjected to a hostile work
environment because the record does not support a determination that the
alleged incident constitutes a hostile work environment. Therefore,
we find that the agency's final action implementing the AJ's finding
of no discrimination regarding claim(3) was proper and is AFFIRMED.
After a careful review of the record, we modify the agency's final action
as follows: the Commission AFFIRMS the agency's final action implementing
the AJ's finding of no discrimination regarding claims (1) and (3), but
REVERSES the agency's final action implementing the AJ's finding of no
discrimination regarding claim (2), and REMANDS this claim to the agency
to take remedial actions in accordance with this decision and ORDER below.
ORDER
Regarding claim (2), the agency is ordered to take the following remedial
action:
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall grant complainant a cash award for 2003, in an
amount equal to the average amount awarded to other Custodial Workers,
and that such award be noted in the records of the agency and complainant,
if appropriate, in the same manner in which the awards given to other
Custodial Workers may have been noted.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Martin Army Community Hospital
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.
ATTORNEY'S FEES (H0900)
If complainant 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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
November 16, 2005
__________________
Date