01974844
11-19-1999
Lori Pavelski, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Lori Pavelski, )
Complainant, )
) Appeal No. 01974844
v. ) Agency Nos. I-94-6505; I-94-6518
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> Complainant
alleges that the agency discriminated against her on the bases of sex
(female) and in reprisal for prior EEO activity. In support of her claim,
complainant identifies the following incidents: management required her
to spend eighty percent of her time performing the duties of her former
position; management refused to provide her with a position description;
management denied her request for advanced sick leave; and management
changed her duty hours and confiscated her key card. Complainant also
alleges that the agency harassed her on the same bases when management
condoned the distribution of flyers which were �derogatory to women.� The
Commission accepts the appeal in accordance with EEOC Order No. 960.001.
For the following reasons, we affirm the FAD.
The record reveals that during the relevant time, complainant worked
as GS-7 Immigration Status Verifier in Milwaukee, Wisconsin. Within
complainant's facility, all support and technical staff were female while
all but one of the Officers were male. Complainant filed two formal
EEO complaints which the agency consolidated for processing.<2> At the
conclusion of the investigation, complainant requested that the agency
issue a final agency decision. It is from this decision complainant
now appeals.
The FAD did not make specific findings as to whether complainant
established a prima facie case of disparate treatment or harassment but,
relying on management's explanations for its actions, concluded that
she failed to prove discrimination. On appeal, complainant reiterates
her belief that she was treated less favorably than male employees
and harassed because of her sex and her willingness to contact an EEO
counselor regarding management's actions. Complainant also proffers
new evidence from her supervisor (female) and a co-worker (female).
Complainant's supervisor states that the office has a history of treating
men and women differently; that management is extremely strict with female
employees and extremely lax with male employees concerning leave; and
that women are ordered back to work when they engage in conversation while
men are commonly permitted to stop working and socialize. Complainant's
co-worker echoes complainant's assertion that promoted female employees
had to do the duties of their former jobs while promoted male employees
did not. Her co-worker also submitted a copy of a political cartoon
allegedly circulated by management with an attached statement accusing
employees of filing �frivolous claims.� The agency did not respond to
the appeal.
Disparate Treatment
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973), Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission finds that complainant has established a prima
facie case of sex discrimination. In reaching this conclusion, the
Commission notes that although there were no similarly situated male
employees in the office, the statements of complainant's supervisor
and co-worker concerning the less favorable treatment of women raise
an inference of sex discrimination. We also find a prima facie case of
retaliation. In reaching this conclusion, we note that the content of the
flyer distributed by one of the named responsible management officials
(RMO) indicates disregard for the EEO process and disrespect for those
who use it. Accordingly, we infer retaliatory animus.
Having established prima facie cases of sex discrimination and
retaliation, the burden shifts to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. Regarding the allocation of
time complainant was to spend on her duties, management explained that
because the office was so small, it was common practice for employees
to concurrently perform the duties of former and current jobs until
the hiring of a replacement. Concerning the position description,
management gave conflicting explanations. Complainant's supervisor
stated that position descriptions were available internally, but one
of the RMOs stated that it was the responsibility of a Regional Service
Center to provide them upon promotion.
Management also explained that complainant was denied advanced sick
leave because the agency regulations only permitted the grant of advanced
sick leave to individuals who requested advanced leave in an increment
of five consecutive days. Management declined to make an exception
because complainant had a history of abusing sick leave. Finally,
complainant's hours, along with other employees' hours, were changed to
ensure phone coverage. Because complainant's duty hours were changed,
management explained that she would no longer need an access key card
to enter the building before it officially opened. All of the Officers
retained key cards because their job duties required access to the garage.
Once the agency articulates legitimate, nondiscriminatory reasons
for its actions, the burden shifts back to complainant to prove, by
a preponderance of the evidence, that the agency's proffered reasons
are a pretext for unlawful discrimination. The Commission finds that
complainant fails to meet her burden. Specifically, we find that
complainant was required to perform the duties of her former position
because she was a member of the technical and support staff and that
position descriptions were no more available to men than they were to
women in the office. We further find that the denial of advanced sick
leave was primarily motivated by management's concern that complainant
abused sick leave as evidenced by the fact that, after approximately 5�
years of service with no long term illnesses, her sick leave balance was
zero and that complainant's duty hours were changed because management
wanted the technical and support staff to work the same hours as the
Officers. Complainant fails to present evidence that these were not
the real reasons for the agency's actions. Accordingly, we affirm the
agency's finding of no sex discrimination or retaliation based on the
theory of disparate treatment.
Harassment
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on her claim of sex-based
or retaliatory harassment, complainant must prove that: (1) she was
subjected to harassment that was sufficiently severe or pervasive to
alter the terms or conditions of employment and create an abusive or
hostile environment; and (2) the harassment was based on her membership
in a protected class. See EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6;
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). The Supreme Court stated: �Conduct that is not severe or
pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview.� Harris, 510 U.S. at 22 (1993).
After complainant contacted an EEO counselor concerning the flyers,
management issued a memo prohibiting the distribution of flyers which
may be offensive to other employees or to persons entering the office.
Management stated that the practice of posting and distributing these
flyers ceased, and there is no evidence to the contrary. Accordingly,
we find that the incident complainant asserts constitutes harassment was
not sufficiently severe or pervasive to create a hostile work environment.
Approximately seven months later, one of the RMOs allegedly circulated
a political cartoon disparaging employees in the office for filing
�frivolous claims.� While we do not condone the distribution of a cartoon
of this nature, there is no evidence to suggest a continuing pattern of
similar behavior, nor is there any evidence that it adversely affected
any of the terms or conditions of complainant's employment. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Banks v. Department of Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995). We therefore conclude that incident
which complainant asserts constitutes retaliatory harassment was not
sufficiently severe or pervasive to create a hostile work environment.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
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).
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 the 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 the 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 the 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 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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:
_________________________
__________________________1 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.
2 Complainant alleges sexual harassment in her first complaint.
The agency did not investigate this claim because complainant did not
raise it during EEO counseling. Upon review of the entire record, the
Commission finds that complainant's claim of harassment is sex based,
not sexual, and that the investigation is sufficient for us to render
a determination on the merits of the claim.