Moniqua E. Christensen, Complainant, William S. Cohen, Secretary, Department of Defense, Agency,

Equal Employment Opportunity CommissionMay 18, 2000
01986154 (E.E.O.C. May. 18, 2000)

01986154

05-18-2000

Moniqua E. Christensen, Complainant, William S. Cohen, Secretary, Department of Defense, Agency,


Moniqua E. Christensen v. Department of Defense

01986154

May 18, 2000

Moniqua E. Christensen, )

Complainant, )

) Appeal No. 01986154

) Agency No. SAC98IG0089E

)

William S. Cohen, )

Secretary, )

Department of Defense, )

Agency, )

)

DECISION

INTRODUCTION

Complainant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) 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.<1>

Accordingly, the appeal is accepted in accordance with 64 Fed. Reg. 37,

644, 37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

complainant on the bases of sex (female/sex harassment) and reprisal.

BACKGROUND

Complainant was a GS 1811-13 Special Agent with the Defense Criminal

Investigative Service (DCIS). She was hired in November 1992, and

worked at the El Segundo Resident Agency, Los Angeles, California.

Complainant filed a formal complaint of discrimination based on sex and

reprisal listing several events beginning in March 1993. The agency

issued a final decision dismissing events occurring prior to April

1997, for untimely EEO counselor contact. The agency accepted for

investigation those claims occurring after that date. Complainant did

not appeal that decision.

Complainant claimed that her new supervisor (Supervisor) made unwelcome

sexual advances to her and sexually harassed her.<2> She averred that,

between April 1, and May 7, 1997, the Supervisor entered her work cubicle

and stared at her from behind for several minutes. She stated that she

questioned why he did that, and he responded that he was admiring her,

and that he liked to stalk his prey, like a cat. The Supervisor averred

that if an agent was on the phone or in the middle of something when he

entered their cubicle he would wait, and stated that he did not stare

at complainant from behind or make the comment.

Complainant stated that she was excluded from a field office training

session attended by her co-workers intended to build team spirit, that

she attended a session later that day with another office, and that

the Supervisor and two other managers singled out her training video

for criticism.

The Supervisor averred that complainant missed the field training with

her co-workers because she was not at the pick-up location on time.

He stated that the training coordinator approached him and told him

that complainant's response in the taped exercise was inappropriate, and

therefore he, the instructor and the Assistant Special Agent in Charge

(ASAC) viewed the video.<3>

Complainant averred that on May 10, 1997, after an all-night team

surveillance assignment, she allowed the Supervisor to sleep on the

couch at her home while she ran errands, until they drove to the office

to swap cars. She stated that they had dinner together, then the

Supervisor returned to her home at 3:30 am and insisted that she talk

with him about his personal life.<4> She stated that he stayed for a

couple of hours and told her he had trouble being faithful to his wife,

was attracted to her, insinuated that he wanted a physical relationship

with her and stroked her hand. Complainant declined. She stated that

he became angry and told her he could not think of her as a Special

Agent or treat her like the other agents because he was attracted to her.

The Supervisor denied going to complainant's home at 3:30 on May 10,

1997. He stated that he had been to complainant's home twice; once to

pick complainant up for the surveillance late in the evening of May 9,

1997,and then at about 9:00 or 10:00 pm on May 10, 1997, to exchange

vehicles after the surveillance. He averred that he waited in the

foyer each time because complainant was not ready.

Complainant attended training in undercover operations (UCO) at the

Federal Law Enforcement Training Center (FLETC) in Georgia from May 12,

through May 22, 1997. She stated that the Supervisor told her to call

him each day while she was away. She did as requested. She stated

that she told the Supervisor she would not be able to call him each day

when she returned and worked on the UCO. She stated that he responded

that he would come visit her instead. On May 20, 1997, while at FLETC,

complainant requested a transfer to Ft. Lauderdale, Florida.

The Supervisor averred that he never required complainant to call him

each day while she was at training, but told her to keep in touch a

couple of times a week just as he required of all the agents.

Complainant averred that on Monday, May 26, 1997, the Supervisor was

angry when she returned to work because he said he now had to plan

for her replacement, and yelled at her for about an hour and a half for

coming back to work late on the previous Friday, the training/travel day.

She stated that he threatened to take away the government-owned vehicle

(GOV) assigned to her.<5> She stated that he told her he had taken a

big chance with her the other night, was willing to take an even bigger

chance, and asked if there was anything she needed in her personal life.

The Supervisor stated that he was at home on annual leave when complainant

called on May 22, 1997, about the GOV. He stated that she was very

demanding and he became angry that she referred to the GOV as "her"

GOV.<6> He said he called her in the following Monday to straighten her

out. He stated that during the conversation, the complainant became loud

and confrontational. He denied saying that he took a big chance with her.

Between June 8, and 12, 1997, complainant was assigned to temporary

duty in Ohio and Kentucky. Complainant stated that the Supervisor again

instructed that she call him each day.

On June 17, 1997, complainant stated that the Supervisor called her

into his office and told her he did not like her behavior in a computer

training class. He told her that she sat in the front row for attention

and flirted with the teacher. He then told her that he had re-assigned

her UCO case to another agent to even out the caseload. Complainant

averred that she invested six months of preliminary work on the case,

had expertise in the target industry, and had just completed a training

course in undercover work. She stated that although she was assigned

a total of seven cases, many were almost completed.<7> She stated that

the Supervisor told her she should find another case. She stated that

he then told her she was too assertive and aggressive, and always sat in

the front row of classes. She replied that in law enforcement she had

to be aggressive. He replied that she is that way because she is a woman.

The Supervisor denied that he re-assigned the undercover case based

on retaliation. He averred that he received a call from another agent

(the acting supervisor before Supervisor's arrival) attending training

at FLETC who told him that complainant behaved badly. He stated that

one of complainant's co-workers (Co-worker I) who also attended the class

expressed reservations about working with complainant because her contacts

in a certain area could present a conflict with the targets of the UCO.

He stated that Co-worker I told him that agents from other agencies

expressed a lack of confidence in complainant's competence and concern

about her demonstrated lack of tact and diplomacy. The Supervisor

stated that he then spoke with a second co-worker, (Co-worker II) who

attended the training at FLETC who told him that complainant exhibited

unsatisfactory performance during the course, and advised against using

her on a UCO.<8> He stated that he spoke to the instructor at FLETC

and then called the ASCA to discuss the situation. He avers that the

ASAC suggested that he re-assign the UCO to another agent.

Complainant stated that the meeting made her physically sick and she

took six hours of sick leave. She stated that the Supervisor refused

to sign the leave slip, telling her that the regulations require her to

tell him specifically what is wrong and what doctor she is going to see.

On June 25, 1997, complainant discussed with the Supervisor her interest

in opening up a case on a particular company in which another agent

expressed interest. The Supervisor checked the other agent's case

list and found that the company was not listed. The Supervisor told

complainant the next day that the other agent had not yet opened the case,

but would soon, and that she should find another case.

The Supervisor averred that on June 25, 1997, he instructed complainant

three times to give him her notes on the UCO case, and that she refused

each time. He stated that he again told her that he was giving her a

lawful order to hand over her notes, to which she stated that she would

copy her notes first. He stated that he ordered her not to copy the

notes because they constituted a government work product. He stated that

complainant then went to the copy room, remained there for five minutes,

then gave him the notes. He asked her if she copied the notes and she

said no. He then told her that her behavior bordered on insubordination

and that he planned to escalate this to the next level.

On June 26, 1997, complainant reported the sexual advance and harassment

to the Special Agent in Charge (SAC) and ASAC and requested a transfer

to a nearby office in California.<9> They explained to her that they

decided to take her off the UCO case because the Supervisor told them

her international cases were taking up a lot of her time, and she had

not performed well at the UCO training course. The SAC advised her to

contact an EEO counselor and advised complainant and the Supervisor to

have a third person present in any of their meetings.

Complainant averred that the Supervisor created a hostile work

environment. She stated that he constantly berated and belittled her,<10>

took away her desktop computer, objected when she got a replacement,

and told her that she was not to use the office printer, but was to

give a disk to the secretary. Complainant averred that the Supervisor

would not give her time on his schedule to discuss her cases with him.

The record contains memoranda from complainant to the Supervisor between

July 21 and August 20, 1997, documenting her requests for time and her

difficulty in getting time with him.

Co-worker I averred that complainant was manipulative. He stated

that when the Supervisor first arrived at the office, he advised the

Supervisor that the other agents were reluctant to wok with her, and to

keep her "at arm's length." He stated that he believed complainant filed

the instant complaint against the Supervisor in retaliation for being

taken off the UCO. Both Co-workers I and II averred that complainant

yelled at her previous supervisor if she did not get something she wanted,

and was self-centered. The primary agent on the UCO case averred that

complainant had invested minimal work on the UCO case.

The ASAC averred that there was a feeling among complainant's peers that

she was not a team player, although he never heard anything bad about

her work. The ASAC stated that the Supervisor was more strict than the

previous supervisor, tightened office administration and put limits

on a few of the agents. He averred that the Supervisor reported to

him on an ongoing basis that he was having difficulty with complainant,

that she had difficulty reporting in, and that she resisted any changes

he instituted. The ASAC stated that he decided to re-assign the UCO case

because of the negative report of complainant's performance at FLETC,

and the office case distribution.

The agency's Inspector General Program Review Office conducted an

extensive administrative investigation during which they interviewed

many witnesses. Complainant and the Supervisor issued contradictory

statements under oath about the events of May 10, 1997. The investigators

reported that they could not definitively establish whether the Supervisor

engaged in sexual harassment or created a hostile work environment.

On March 18, 1998, the Inspector General Office sent complainant the

Report of Investigation with a letter outlining her right to request

either a hearing before an EEOC Administrative Judge (AJ) or a final

agency decision (FAD) without a hearing. Complainant replied by letter

dated March 31, 1998, requesting a FAD without an EEO hearing.

By letter dated May 11, 1998, addressed to the agency EEO Office,

complainant stated that because of medication she took for a back injury

she was unable to understand her choices in the agency's March 18, 1998,

letter and was now requesting a hearing before an EEOC AJ.

The agency informed complainant that her request for a hearing was

untimely and issued a FAD finding that complainant failed to prove

that she was sexually harassed. The agency found that the Supervisor's

actions did not create an atmosphere sufficiently severe or pervasive

enough to create a hostile work environment.

Complainant appealed. She argued that she did not understand the agency's

notice regarding her right to a hearing because she was on medication for

a back injury at that time, and now requests a hearing before an EEOC

Administrative Judge.<11> Complainant also states that the instructor

at the field training did not tell her there was a problem with her

performance and did not invite her to view the video so that she could

see her errors. She states that the instructor at FLETC did not tell

her that her performance was negative. Complainant further states that

her previous supervisor did not require her to call in daily.

The agency replied that complainant's allegations were not supported by

the testimony of her co-workers or the training instructor, and that the

agency articulated legitimate, non-discriminatory reasons for its actions,

which complainant failed to prove were a pretext for discrimination.

The agency argues that it did not mislead complainant about her right

to a hearing before an EEOC AJ and that complainant did not show by

a preponderance of the evidence that she was incapable of making an

informed decision between March 25, and May 11, 1998.

FINDINGS AND ANALYSIS

EEOC Regulation 29 C.F.R. 1614.109 provides that within 180 days from the

filing of a formal complaint, the agency shall notify the complainant

that the investigation is completed, provide the complainant with a

copy of the investigative file, and notify the complainant of her right

to request a hearing before an administrative judge, or an immediate

final decision from the agency. The agency so notified complainant,

and complainant responded in writing that she requested an immediate

final agency decision without a hearing. The Commission finds that the

agency's notice to complainant was unambiguous, and complainant's response

was clear. Complainant may not now request a hearing before an EEOC AJ.

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, 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;<12> (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).

Regarding element (1), complainant has established that she is a member of

a statutorily protected class. With regard to element (2) the Commission

finds that complainant fails to meet her burden of establishing that

she was subjected to unwelcome sexual advances by the Supervisor.

Complainant fails to establish that the Supervisor was at her home on

May 10, 1997, at 3:00 am and fails to establish that he made sexual

advances to her at that time. Therefore, the Commission finds that the

complainant fails to establish a claim of sexual harassment.

Complainant's claims of disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). In general, for complainant to prevail, she

must first establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination. McDonnell Douglas, 411 U.S. at 802.

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). If the agency is

successful, the burden reverts back to the complainant to demonstrate

by a preponderance of the evidence that the agency's reasons were

a pretext for discrimination. At all times, complainant retains the

burden of persuasion and it is her obligation to show by a preponderance

of the evidence that the agency acted on the basis of a prohibited

reason. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,

715-716 (1983).

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 a legitimate, nondiscriminatory reason 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 a

preponderance of the evidence that the agency's reason for its actions

was a pretext for discrimination. Id.; see also United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).

After a careful review of the record, the Commission finds that the

agency articulated legitimate, nondiscriminatory reasons for its actions

and complainant failed to demonstrate that the reasons articulated were

a pretext for discrimination. The instructor averred that complainant

was late for the field training exercise and therefore, took the session

with another office. He also averred that complainant made errors

and used inappropriate deadly force in the exercise, and he therefore,

requested that the Supervisor and ASAC view the video. The Supervisor and

ASAC provided rational reasons for re-assigning complainant's UCO case

based on office case loads and her poor performance at UCO training.

The Supervisor counseled complainant about her lack of team spirit

and her attire based on comments received from her co-workers and her

inappropriate dress. The Supervisor and ASAC both averred that the

Supervisor instituted tighter office administration procedures, especially

regarding phoning in and use of office equipment. These restrictions

affected all of the agents.

In order to establish a prima facie case of discrimination for an

allegation of reprisal, complainant must show: 1) that she engaged in

protected activity, e.g., participated in a Title VII proceeding; resisted

unwanted sexual advances, 2) that the alleged discriminating official

was aware of the protected activity; 3) that she was disadvantaged

by an action of the agency contemporaneously with or subsequent

to such participation; and 4) that there is a causal connection

between the protected activity and the adverse employment action.

Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425

F. Supp. 318, 324 (D. Mass), affirmed, 545 F. 2d 222 (1st Cir. 1976);

see also Mitchell v. Baldridge, 759 F. 2d 80, 86 (D.C. Cir. 1985);

Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th

Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

We find that complainant failed to show that the agency's actions

were in reprisal for her protected activity. The evidence of record

does not establish that the Supervisor made unwelcome sexual advances

to complainant or that she resisted any sexual advances. A careful

reading of the record established that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Complainant's assertions are

not enough for her to prevail absent other evidence that a discriminatory

motive existed. Therefore, the agency's determination that complainant

failed to establish that the agency retaliated against her or that its

actions were based on discriminatory animus was correct.

CONCLUSION

Accordingly, the decision of the agency is proper and is AFFIRMED.

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

May 18, 2000

________________________ _______________________

DATE Carlton 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 The Supervisor became complainant's supervisor on April 1, 1997,

when he was transferred to the office.

3 The instructor averred that he approached the Supervisor about

complainant's inappropriate response and use of deadly force in the

training session and suggested that they view the tape. He stated that

they also viewed a male agent's tape. He stated that complainant was

not on time for the session with her office.

4 Complainant's witness, a neighbor, averred that he saw a man standing

in the entrance to complainant's kitchen at about 4:00 am on an evening

that he believes was May 8, 9, or 10, 1997.

5 Complainant averred that when she returned from training on May 22,

1997, the GOV assigned to her was not in the office lot. She phoned the

Supervisor who said that a co-worker borrowed it and told her to call the

co-worker for a ride to the office the next day. The co-worker picked

her up the following day at noon and complainant arrived at the office

at 1:00 pm.

6 Complainant did not own a private vehicle.

7 Complainant stated that the Supervisor earned a promotion because of

his work on an undercover case.

8 Co-worker II told the Supervisor that for the first assignment in the

UCO class, complainant was instructed to approach someone in the nearby

town in Georgia with a simple, believable cover story and learn as much as

possible about that person. Complainant approached a manager at a hotel

with the cover story that she was the executive secretary for a Middle

Eastern prince who wanted to hold his upcoming wedding at that hotel.

9 The SAC averred that there were no vacancies in the office to which

complainant requested a transfer. On September 23, 1997, the SAC

offered complainant a paid Permanent Change of Station to either

St. Louis, Missouri., Arlington, Virginia., or Atlanta, Georgia.

Complainant declined.

10 Complainant averred that the Supervisor told her that her attire was

unprofessional, and that she was immature and childish. Co-workers I

and II averred that complainant often wore very short skirts and a

jacket more appropriate for a rock star than a special agent. They also

stated that complainant did not support other agents in the office and

was self-centered.

11 Complainant submitted a letter from a doctor stating that on March 2,

1998, he prescribed an anti-inflammatory agent, a muscle relaxant, and

a pain reliever for a work related injury. He listed the medications'

possible side effects which included mental clouding, and impairment of

mental and physical performance.

12 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