Mary A. Millerv.Department of Defense 01986550 September 27, 2000 . Mary A. Miller, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionSep 27, 2000
01986550 (E.E.O.C. Sep. 27, 2000)

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.