0120071912
08-16-2007
Linda Gsanger, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Linda Gsanger,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120071912
Hearing No. 560-2006-00104X
Agency No. 05EASAMCR001
DECISION
On March 10, 2007, complainant filed an appeal from the agency's February
1, 2007, final decision concerning her equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented by this appeal is whether the agency discriminated
against complainant on the basis of her national origin and/or in
retaliation for engaging in EEO activity when it issued her a one-day
suspension.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Sales Store Checker GS-3, at the agency's Tinker Air Force Base
Commissary at the Tinker Air Force Base, Oklahoma. Complainant alleged
that, on November 9, 2004, she was scanning a customer's items at the
check out counter when her supervisor (S) sent an employee to help with
bagging the items. She asked S to assign someone else because she did
not get along with this employee. Complainant claims that S came to her
work station, pushed her aside, yelled at her in front of the customers
and took over the check out duties. S then sent her to the office to
speak with another supervisor (S2) about the incident. Thereafter S,
S2 and one other manager cornered her in the office and threatened her
about dropping her pending EEO complaint. After the meeting, S sent
her back to the cashier stand to continue her duties even though she was
upset about the meeting. Complainant contends that this was but one in
a series of harassing events.
On May 6, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of her national origin (Filipino)
and in reprisal for prior protected EEO activity under Title VII when:
1. she was subjected to harassment because of her membership in a
protected class;
2. she was threatened that she must drop her EEO complaint;
3. she was given a one day suspension for the incident on November 9,
2004.
At the conclusion of the investigation, the agency provided complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing, but the AJ dismissed her hearing request on the
grounds that complainant failed to respond to the agency's discovery
requests. The AJ remanded the complaint to the agency for issuance of a
final decision. 29 C.F.R. � 1614.110(b). The agency's final decision
concluded that complainant failed to prove that she was subjected to
discrimination as alleged. More specifically, the agency found that
it suspended complainant for refusing to scan a customer's order and
refusing to work with another employee assigned to bag the grocery orders.
The agency relied on the fact that complainant had been given a letter of
reprimand in the past for misconduct and as a result, it was justified
in giving her more serious discipline. The agency concluded that the
incident alleged was insufficient to constitute unlawful harassment.
CONTENTIONS ON APPEAL
On appeal, complainant argued that the agency's FAD was incorrect
in concluding that no discrimination occurred. She contended that
the agency did not consider evidence that the agency's managers told
her to drop her EEO complaint or risk termination of her employment.
Complainant stated that she felt threatened by the agency's command
and dropped her pending EEO complaint. Even though she thought that
this had resolved the complaint, complainant contended that the agency
disciplined her several months after the fact in retaliation for filing
the complaint. She argued that since she had filed an EEO complaint on
October 18, 2004, the agency's untimely discipline, on March 11 2005,
was more likely motivated by retaliation. Complainant did not challenge
the AJ's dismissal of her hearing request or the agency's finding that
she was not subjected to harassment.
ANALYSIS AND FINDINGS
First, we set forth the standard of review on appeal of the agency's
final decision. The agency's decision is subject to de novo review
by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). This means that
the Commission must examine the record without regard to the factual
and legal determinations of the previous decision maker. EEOC will
review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law.
Turning to the substantive law applicable in this case, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) in proving
her disparate treatment claim. Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976) She must generally establish a prima facie case by
demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate reasons for its actions.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC
Request No. 05950842 (November 13, 1997). Specifically, S stated that
complainant stopped performing her check out duties while servicing a
customer because she did not want to work with the employee assigned to
bag her orders. S explained that complainant refused his instruction to
finish checking out the customer and he then told her to step aside so
that he could finish the customer's order. He asked S2, the Customer
Service Manager, to take over for complainant while he helped other
customers. Thereafter, S, S2 and another manager met with complainant
about the incident but they deny that they threatened complainant to
drop her EEO complaint. S and S2 stated that complainant's conduct was
the reason for issuing the suspension and not the fact that complainant
was a member of a protected class.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995). Complainant claims that the agency
issued the suspension because it was motivated to retaliate against
her for filing a discrimination complaint. She stated in her affidavit
testimony that she had filed a complaint on October 18, 2004 and that
on the day of the incident, her supervisors threatened that she would
lose her job if she did not drop her complaint.
However, the preponderance of the evidence supports the agency's
contention that complainant engaged in misconduct by failing to perform
her duties as instructed. Two other employees stationed at nearby cash
registers corroborated that complainant stopped scanning her customer's
items and that S had to take over for her when she refused to finish
the customer's order. Neither of these employees observed S pushing
complainant out of the way or yelling at her in front of customers.
Moreover, the record indicates that the agency's decision to suspend
complainant was affected by discipline previously issued to complainant
for other rule infractions and was not motivated by discriminatory animus.
Finally, we find no persuasive evidence in the record that supports
complainant's allegation that she was pressured by management officials
to drop her EEO complaint.
Even though complainant did not directly challenge the agency's finding
that there was no illegal harassment, we will address it briefly.
In order to establish a claim of harassment based on national origin,
or reprisal, complainant must show that: (1) she is a member of the
statutorily protected class; (2) she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The harasser's
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).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an
abusive working environment." Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,
Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor,
complainant must also show that there is a basis for imputing liability
to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982). Complainant claimed that S and other supervisors constantly
monitored her activities at work which amounted to unlawful harassment.
She contended that the harassment was motivated by her national origin
because S made statements referring to her lack of English speaking
skills. Other than complainant's unsubstantiated statements however,
there is no evidence in the record which corroborates complainant's
claim that she was harassed. Instead, S's unrebutted testimony suggests
that the agency had legitimate reasons to scrutinize complainant's
whereabouts since there were documented instances when she had left
her work station without permission and was tardy returning from her
lunch break. Therefore, the Commission concludes that complainant's
claim of harassment must fail.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission
concludes that complainant failed to establish by a preponderance of
the evidence that the agency discriminated against her on the basis of
her national origin or in retaliation for her EEO activity. Therefore,
we affirm the agency's final decision.
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 (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
____8-16-07______________
Date
2
0120071912
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120071912