0120080309
07-07-2009
Mary Ann Woodward, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Mary Ann Woodward,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080309
Agency No. 05-00052-02119
DECISION
On October 23, 2007, complainant filed an appeal from the agency's
September 27, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
BACKGROUND
The record reflects that complainant worked as a Program Assistant,
GS-0344-08, for the agency's Chief of Naval Operations until January 2004,
when she was informed that she was being reassigned, effective February
1, 2004, to the position of Security Assistant (Office Automation),
GS-0086-08, with the Commander, Navy Installations Command in Washington,
DC. Complainant's second-level supervisor during the relevant time
period was the Administrative Director. Complainant's first-level
supervisor from May 2003 until March 2005 was the Program Director.
The Administrative Director served as complainant's first-level supervisor
from March 2005 until July 2005, when the Security Manager was hired
and became complainant's new first-level supervisor.
Complainant began inquiring whether she could be promoted to a GS-9 pay
level soon after her reassignment to the position of Security Assistant,
GS-8. Complainant alleged that she repeatedly asked for a promotion
and a desk audit of her position, but management denied or ignored her
requests.
On September 6, 2005, the Security Manager issued complainant a Letter
of Caution for inappropriate behavior. The letter indicated that
complainant had confronted her supervisors in a disrespectful and
unprofessional manner; failed to carry out her work assignments, and
exhibited disruptive office behavior by repeatedly expressing displeasure
with recent personnel changes to co-workers while they were working.
On December 22, 2005, the Security Manager issued complainant a Letter of
Reprimand for inappropriate workplace behavior and failure to complete a
work assignment. The letter noted that complainant had been counseled
several times regarding the amount of time she was spending expressing
her displeasure over not receiving a GS-9 position and failing to complete
work assignments by the completion deadline.
On December 8, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African American), color
(Black), and age (52 years old at the time of the incidents) when:
(1) From February 2004, until the present, management repeatedly denied
complainant's requests for a promotion;
(2) On January 12, 2005 and February 16, 2005, management did not respond
to complainant's requests for a desk audit;
(3) In August 2005, on two different occasions, complainant's supervisor
harassed her and subjected her to derogatory remarks;
(4) On September 6, 2005, complainant's first-level supervisor issued her
a Letter of Caution for inappropriate behavior, disrespect of supervisor,
failure to carry out work assignments, and disruptive office behavior;
and
(5) On December 22, 2005, complainant's first-level supervisor issued
her a Letter of Reprimand for inappropriate behavior in the workplace
and failure to complete a desk guide.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged. Specifically,
the agency found that complainant failed to establish that the agency's
legitimate, nondiscriminatory reasons for its actions were a pretext for
unlawful race, color, or age discrimination. The agency also found that
complainant failed to establish that she was subjected to a hostile work
environment.
CONTENTIONS ON APPEAL
Neither complainant nor the agency submitted a statement on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), 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) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "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").
Disparate Treatment
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. 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).
Assuming arguendo that complainant established a prima facie case of
race, color, and age discrimination, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions. With respect
to claim (1), the Program Director submitted a statement in the record
noting that she submitted complainant's request for a promotion to "the
next level up." The Security Manager stated that complainant requested a
promotion a few weeks after he began working in the office, but he was not
in the office long enough to assess her work. The Security Manager noted
that the position complainant occupied was typically a GS-7 position.
Both the Security Manager and the Program Director indicated that there
were no vacant positions to promote complainant to at the GS-9 level.
The Administrative Director stated that she had informed complainant
that she could not promote complainant because she had only worked
with complainant for a short time, and she could only promote someone
to recognize good performance. The Administrative Director noted that
she recommended complainant for a performance award based on her work
during the rating period.
With respect to claim (2), the Program Director stated that complainant
had asked her about a desk audit, and she had discussed complainant's
request with the Administrative Director. The Security Manager stated
that complainant only spoke with him about a promotion and never
formally requested a desk audit. The Administrative Director stated
that she informed complainant that she could not promote complainant
since they had only worked together a short time. The Administrative
Director further informed complainant that her supervisor would be
able to determine over time if there was a problem with her grade level.
A Human Resources Specialist submitted a statement stating that management
was not required to conduct a desk audit if an employee requested one.
The Human Resources Specialist indicated that no desk audits were
performed in complainant's area during the relevant time period.
Regarding claims (4) and (5), the Security Manager stated that complainant
was issued a Letter of Caution and a Letter of Reprimand for refusing
to do work he assigned to her and being disruptive in the work place.
The Security Manager and the Administrative Director indicated that
the Security Manager conferred with HR prior to issuing complainant the
letters.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Upon review, we concur with the agency's determination
that complainant failed to establish pretext. We find that the record
is devoid of any evidence that the agency's actions were motivated
by discriminatory animus. We note that complainant did not request a
hearing or provide a statement on appeal, and, as a neutral party, we are
not persuaded, based on the record of investigation, that complainant
has shown that the agency's articulated reasons for its actions were a
pretext for unlawful discrimination based on race, color, or age.
Hostile Work Environment
Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or 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., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). To establish a prima facie case of harassment, complainant
must show that: (1) she is a member of a statutorily protected class
and/or was engaged in prior EEO activity; (2) she was subjected to
unwelcome verbal or physical conduct related to her membership in that
class and/or her prior EEO activity; (3) the harassment complained of
was based on her membership in that class and/or her prior EEO activity;
(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 Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to 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).
Complainant alleged that she was subjected to harassment when the
Administrative Director told her to "shut up" on one occasion and called
her a "redhead" on another occasion. Upon review, the Commission concurs
with the agency's determination that complainant has failed to establish a
prima facie case of harassment. In particular, we find that complainant
has not shown that the alleged harassment was based on her race, color,
or age. Furthermore, in viewing the events as a whole, complainant has
not established that the incidents in question had the purpose or effect
of unreasonably interfering with complainant's work performance and/or
creating a hostile work environment.
CONCLUSION
Accordingly, based on our thorough review of the record, the Commission
determines that the agency's final decision finding no discrimination
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_____________
Date
_______07-07-09____________________
Date
2
0120080309
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080309