01971807
02-23-2000
Ljiljana Nikolovski, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Ljiljana Nikolovski, )
Complainant, )
) Appeal No. 01971807
v. ) Agency No. 96-54-0090
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the
agency concerning her claim that the agency violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<0> 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: (1) whether the agency discriminated
against the complainant based on sex (female), national origin
(Macedonia), and physical disability (herniated discs) when she was
removed from her position during her probationary period; and (2) whether
the complainant was discriminated against based on her sex when she was
allegedly sexually harassed.
BACKGROUND
The complainant filed a formal complaint in December 1995 in which she
raised the issues identified above. Following an investigation, the
complainant did not request a hearing and the agency issued a final
decision in November 1996 finding no discrimination with regard to
both issues. It is from this decision that the complainant now appeals.
In July 1995, the complainant was hired for the position of Secretary,
GS-6, with the National Weather Service, which was contingent
on her successful completion of a one-year probationary period.
The complainant's supervisor (the Responsible Official, RO) testified
that, despite considerable training, the complainant never demonstrated
an ability to satisfactorily perform the duties of the position.
In particular, the RO cited the complainant's inability to prepare both
travel vouchers and time and attendance reports. As a result of these
problems, the complainant was issued a notice of removal (NOR) dated
October 2, 1995, which states, in relevant part:
The purpose of the probationary period was to permit you to demonstrate
that you have the ability to perform the functions of the Secretarial
position for which you were hired. However, despite formal and on-the-job
training, you have failed to perform basic clerical and secretarial
tasks relating to recording time and attendance or to complete travel
orders or travel vouchers in a timely or accurate fashion.
In support of her position, the complainant disagrees with the criticisms
of her performance and also asserts that she did not receive proper
training. In arguing that her removal was based on her national origin,
the complainant cites a comment made by the RO to another individual.
According to the complainant, the RO stated, �What is Yugoslavia fighting
for? It is a country that has nothing.� The RO denied having made this
comment.
The complainant's sex discrimination claim, which she also characterizes
as a claim of hostile environment sexual harassment, is premised on
her belief that the RO �wanted a compliant female as a secretary.�
In support of that assertion, the complainant cited an occasion on
which the RO told her not to open any material addressed to him that
was pornographic. The RO testified that he had, in fact, made such
a comment while discussing with the complainant what mail of his she
should open for him. In explaining the impetus for the comment, the
RO testified that there had been an occasion when his former secretary
accidentally opened some unsolicited pornographic material addressed
to him. The complainant also cited an occasion on which the RO discussed
his former secretary's dating life with the complainant. In response,
the RO denied having had such a discussion with the complainant.
In further support of her sexual harassment claim, the complainant
testified that a co-worker (Employee A) commented that the RO liked
to see women wearing three-inch heels and would love to see them climb
ladders so he could look up their skirts. Employee A denied having made
these comments.
ANALYSIS AND FINDINGS
Issue 1
Sex and National Origin
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. The complainant has
the initial burden of establishing a prima facie case of discrimination.
If the complainant meets this burden, then the burden shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. The complainant 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).
The complainant can establish a prima facie case of discrimination based
on sex and national origin by showing that: (1) she is a member of the
protected groups; and (2) she was treated differently than a similarly
situated nonmember of her protected groups. See Potter v. Goodwill
Industries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1975). We find
the complainant has not established a prima facie case based on either
sex or national origin insofar as she has not shown that she was treated
differently than a nonmember of her protected groups.<0>
Assuming, arguendo, that the complainant could establish a prima facie
case, we find that the agency articulated legitimate, nondiscriminatory
reasons for the complainant's removal. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981). Specifically, the RO
testified that the complainant was not able to satisfactorily perform
the duties of her position.
At this point, the complainant bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination. The
complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
Id. at 519 (emphasis in original).
Initially, and notwithstanding the complainant's assertions to the
contrary, we find ample evidence in the record to conclude that
she experienced problems performing the duties of her position.
In so finding, we note that the RO's testimony to that effect was
corroborated by a number of witnesses. Furthermore, we find unpersuasive
the complainant's assertion that her removal was based on either her
sex and/or her national origin. Specifically, there is insufficient
evidence in the record to support the complainant's assertion that the
RO �wanted a compliant female as his secretary� or to conclude that
her sex had anything to do with her removal. Moreover, even assuming
the RO made the comment about Yugoslavia, this does not, by itself,
establish that he removed the complainant because she is Macedonian.
Accordingly, the Commission finds the complainant has not established
that her removal was based on either her national origin or her sex.
Disability
The burdens of proof required in a disparate treatment claim brought
pursuant to the Rehabilitation Act are modeled after those used in
Title VII law. See Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th
Cir. 1981). To establish a prima facie case of disability discrimination,
the complainant must demonstrate that: 1) she is an �individual with a
disability� as defined in 29 C.F.R. � 1630.2(g);<0> 2) she is a �qualified
individual with a disability� as defined in 29 C.F.R. � 1630.2(m); and
(3) the agency took an adverse action against her. Id. The complainant
must also demonstrate a causal relationship between her disability and
the adverse action.
An �individual with a disability� is defined as someone who: (1) has a
physical or mental impairment which substantially limits one or more
of such person's major life activities; (2) has a record of such an
impairment; or (3) is regarded as having such an impairment. 29 C.F.R. �
1630.2(g)(1)-(3). �Major life activities� include functions such as
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i).
Although the complainant states that she has two herniated discs, she has
offered no medical evidence in support of her position and has given no
indication that this condition substantially limits a major life activity.
Accordingly, the Commission finds the complainant has not established that
she has an impairment that substantially limits a major life activity,
and, as such, cannot establish that she has an actual disability.
The Commission also finds insufficient evidence to conclude that the
complainant had a record of a substantially limiting impairment or
that she was regarded by agency officials as having such an impairment.
Consequently, the Commission finds the complainant has not established
that she is an �individual with a disability.� Finally, even if
the complainant could demonstrate that she is an �individual with a
disability,� she has not demonstrated that there is a connection between
her alleged disability and her removal. Accordingly, the Commission
finds the complainant has not established that the agency discriminated
against her based on disability.
Issue 2
It is well-settled that sexual harassment in the workplace constitutes
an actionable form of sex discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
sexual harassment, the complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct
related to her gender, including sexual advances, requests for favors, or
other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on sex;<0> (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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).
We find that the complainant has not established a claim of sexual
harassment. Specifically, we find that the several incidents cited by the
complainant, even if they occurred as she alleges, were isolated in nature
and not "sufficiently severe [and] pervasive to alter the conditions of
[her] employment and create an abusive working environment." Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Accordingly, we
find the complainant has not established that she was sexually harassed.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find the complainant
has not established that the agency discriminated against her as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
02-23-00
Date
Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant01 On
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 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's
website at WWW.EEOC.GOV.
02 Although comparative evidence is only one method of establishing
a prima facie case, the complainant has not presented any other evidence
sufficient to support an inference of either sex or national origin
discrimination. See O'Connor v. Consolidated Coin Caters Corp., 517
U.S. 308 (1996); Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981).
03 The October 1992 amendments to the Rehabilitation Act provide that
the standards used to determine whether Section 501 of the Rehabilitation
Act has been violated in a complaint alleging non-affirmative action
employment discrimination shall be the standards applied under Title
I of the Americans with Disabilities Act of 1990. 29 U.S.C. � 791(g).
The regulations at Part 1630 implement the equal employment provisions
of the Americans with Disabilities Act.
04 In addition to considering conduct that is explicitly sexual in
nature, the Commission will consider other conduct or comments which
are related to the complainant's gender.