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