01986550
09-27-2000
Mary A. Miller v. Department of Defense 01986550 September 27, 2000 . Mary A. Miller, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Mary A. Miller v. Department of Defense
01986550
September 27, 2000
.
Mary A. Miller,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01986550
Agency No. DM-97-406
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her 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 and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. � 621 et seq<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405). For the following reasons, the final
agency decision is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has proved, by
preponderant evidence, that she was the victim of unlawful employment
discrimination based on race (Black), sex (female), and age (d.o.b.,
July 14, 1947) and subjected to a hostile working environment.<2>
BACKGROUND
Complainant, employed by the agency as a WG-702-06 Packer, filed a formal
complaint on August 4, 1997, alleging discrimination in which she raised
what has been identified as the issue presented. The agency accepted the
complaint for processing and, at the conclusion of the investigation,
issued a decision finding no discrimination. It is from that decision
that complainant appeals.
A thorough examination of the investigative file reveals that complainant
believes that she was discriminated against on the basis of race,
sex, and age when, in May 1997, she was demoted from the position of
WG-7002-07 Packing Inspector to her current position. According to the
file, complainant had served as a Packing Inspector for the previous
ten years. For the previous eight years, her tour of duty was from 4:00
a.m. to 12:30 p.m.
In November 1996, her supervisor informed her that she would be moved to
the 7:30 a.m. - 4:00 p.m. shift. According to complainant, when she asked
her supervisor to allow her to remain on her regular shift, he refused.
She then went to the Division Chief, who indicated that she could remain
on her regular shift, but would be downgraded to a WG-6 Packer position.
Complainant considered the Division Chief's indication a threat, so she
filed an Unfair Labor Practice grievance against him.
Complainant stated in an affidavit that, from that point on, her
supervisor told her that if she remained on the shift, she would be
downgraded. She also contended that he constantly told her what he was
going to do to her, that she was crazy, and that her family was crazy.
She stated that her supervisor also went to her family business and parked
in the parking lot. According to her, the harassment went on for about
two to three months. She stated that she reported to the Colonel how
she was being harassed and threatened by her supervisor and the Division
Chief. The Colonel indicated that he would write the Division Chief to
ask him if complainant could be moved to another position that would
allow her to remain a WG-7. A week later, after not hearing anything,
she contacted the Colonel and he indicated that he would try to move
her to another job so that she would be out of that environment. Again,
after not hearing anything for a week, she contacted the Colonel again
and he indicated that there was nothing he could do.
In May 1997, complainant was downgraded to the WG-6 Packer position.
Complainant indicated that the Vice-President of the Union told her that
of the people that were on the list to be downgraded, she was the only
one that was actually downgraded. She also indicated that a similarly
situated White male was not downgraded; in fact he had been promoted to
Packing Work Leader.
In August 1997, the Packing Branch, the branch in which complainant
worked, was assigned a new chief. Each packer was asked to choose
the shift they wanted. Complainant chose and was granted the Tuesday
through Saturday shift. Complainant worked this shift for six weeks.
After a while, people were allowed to change shifts in order to be off on
the weekends. When she approached the new Branch Chief about changing so
that she could be off on Saturdays, he indicated that he would not allow
her to change unless she presented a letter of hardship. After turning
in the letter, she was allowed to change shifts for six weeks.
In an affidavit, the Division Chief stated that over the years,
there had been several GS-7 Packing Inspector positions. But when he
arrived, there were only two, one of which was occupied by complainant.
According to him and documents provided by the agency, the Office of
Personnel Management (OPM) and the personnel offices within the agency
determined that, in an attempt to downsize the number of DOD employees,
packing inspectors were no longer needed. He stated that as Packing
Inspectors left due to attrition, their positions were abolished.
He also stated that about 18 months into his tour, which began on August
22, 1994, the Packing Branch had an opening for a Packing Work Leader.
Both packing inspectors were offered the position on a temporary basis (60
day rotations). According to the Division Chief, complainant declined.
Complainant's affidavit confirmed that she was offered the position
but declined because she had a lot of family problems and did not want
more responsibility. The other Packing Inspector, a White male, accepted
the temporary position and was later given the job on a permanent basis.
After the promotion, complainant was the branch's only Packing Inspector.
The Division Chief stated that on November 5, 1996, complainant,
accompanied by two union representatives, came into his office to discuss
the agency's proposition that she be moved to the 7:30 a.m. - 4:00 shift.
He explained to her that if she were a WG-6 Packer she would not be moved
from her regular shift of 4:00 a.m. - 12:30p.m., but as the only Packing
Inspector, the agency needed her on the later shift. In January 1997,
he was notified that a possible Unfair Labor Practice grievance was being
filed against him for threatening to downgrade complainant because she had
sought union assistance. According to him, this was not the first time
that the agency had asked complainant to change shifts. He stated that
she would always have a reason for not being able to change, i.e., taking
care of her son in the afternoon or taking care of her elderly parents.
He also stated that the agency tried to accommodate complainant as much
as possible. For example, the agency allowed her to remain on the 4:00
a.m. shift, while the other Packing Inspector, before he was promoted,
took the later shift.
Complainant's supervisor stated that complainant was always complaining
about the working conditions. He also stated that while he never talked
hostilely with her, he did indicate that he didn't want to hear her
complain every morning. According to him, he offered to move her to
another area but she declined. The supervisor confirmed the Division
Chief's contention that OPM was responsible for downgrading complainant's
position.
ANALYSIS AND FINDINGS
Demotion
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. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973); see also Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979) (applying McDonnell Douglas to age cases).
First, complainant must 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. McDonnell Douglas, 411 U.S. at
802. Next, the agency must articulate a legitimate, nondiscriminatory
reason(s) for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful,
then the complainant must prove, by a preponderance of the evidence,
that the legitimate reason(s) proffered by the agency was a pretext
for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
legitimate, nondiscriminatory reasons for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). In this case, we find that the agency has stated a legitimate,
nondiscriminatory reason for its actions. Specifically, the agency
stated that complainant was demoted or that her position was downgraded
because OPM and personnel offices within the agency decided that packing
inspectors were no longer needed. This decision was reached in an effort
to downsize the number of DOD employees. The agency also stated that
complainant could have kept her WG-7 position if she had changed to the
later shift, which needed a Packing Inspector, which she refused to do.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,
complainant has failed to meet that burden. Complainant offered no
evidence which disproves the agency's stated reasons. In fact, she
even confirmed those reasons. For example, she stated that the agency
did offer her the Packing Work Leader position and that she declined
the offer. She also stated that she did not want to change shifts in
order to keep her WG-7 position. For that reason, we find that she
failed to prove, by preponderant evidence, that her demotion was based
on unlawful discriminatory animus.
Harassment/Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
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 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, 510 U.S. 17 (1993).
Complainant alleged that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, complainant must show that: (1) she is a member of a
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 statutorily
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.
In the present case, complainant alleged that she was subjected to
a hostile work environment when her supervisor continually told her
that her position would be downgraded to a WG-6 if she stayed on the
4:00 a.m. shift. After considering that complainant did not want to be
downgraded or be moved from the 4:00 a.m. shift and that, according to
decisions made by OPM and personnel offices within the agency, one or
the other had to happen, we find that the supervisor's constant reminders
were more informative rather than harassing in nature. For that reason,
we also find that the reminders did not trigger a violation of Title VII.
Complainant also alleged that she was subjected to a hostile work
environment when her supervisor told her that she and her family were
crazy and went to her family business and parked in the parking lot.
Regarding these alleged events, we find that complainant has failed to
establish a prima facie case of hostile work environment. Specifically,
we find that she failed to establish the second element of a prima facie
case (i.e., that she was subjected to harassment in the form of unwelcome
conduct involving her protected classes). There appears to be no credible
information in the file which indicates that these events actually
took place. One of complainant's co-workers stated in an affidavit
that he observed complainant and her supervisor arguing at least two or
three times a week, but he did not know the specifics of these arguments.
The co-worker also stated that complainant and her supervisor accused each
other of not liking the other for some unknown reason. It appears that
there was a personality conflict between complainant and her supervisor.
Because complainant failed to provide any credible evidence that these
events actually
occurred, we find that there is insufficient evidence to show that she
was harassed or subjected to a hostile working environment.
CONCLUSION
Based on the forgoing, after a careful review of the record, including
complainant's contentions on appeal, the agency's response thereto,
and arguments and evidence not specifically addressed in this decision,
we hereby AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 27, 2000
__________________
Date
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. The regulations, as amended, may also be found
at the Commission's website at www.eeoc.gov.
2In the formal complaint, complainant alleged that she was sexually
harassed. But after examining various documents within the evidentiary
file, it is clear that she is actually alleging non-sexual harassment.