01A11439
09-27-2002
P. Robin Lindecamp, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
P. Robin Lindecamp v. Department of the Army
01A11439
September 27, 2002
.
P. Robin Lindecamp,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A11439
Agency No. GBF990500230
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the final agency decision
(FAD), dated November 20, 2000, concerning her complaint of unlawful
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that
she was discriminated against on the basis of sex (female) when she was
subjected to a hostile work environment preventing her from performing
her duties and when her temporary appointment to GM-14 was not extended
for one or two years, depending on whether the number of years of a
temporary appointment was limited to three or four years.<1>
ISSUES PRESENTED
Whether the complainant was a victim of sexual harassment when she was
allegedly subjected to a hostile work environment and whether the agency
discriminated against complainant on the basis of sex (female) when her
temporary appointment was not extended and when she was prevented from
performing her duties.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Computer Scientist, GS-1550-13, at the agency's Information System
Command (ISC), U.S. Army Garrison, Aberdeen Proving Ground, MD, facility.
On March 11, 1991, complainant was selected as an Executive Development
Trainee and detailed, for a period not to exceed June 9, 1991, to the
U.S. Army Aberdeen Proving Ground Support Activity (APGSA), Office of the
Commander (Garrison Headquarters). On March 4, 1991, Merit Promotion
Vacancy Announcement XA 116-91 opened for a temporary appointment (not
to exceed one year) to the position of Information Systems Manager,
GM-301-14, Chief, Systems and Plans Division, ISC-Aberdeen. Complainant
applied for the temporary merit promotion appointment position and
was selected. Her prior position as an Executive Development Trainee
detail was terminated on May 4, 1992. Having been selected for the
temporary position, complainant was temporarily promoted to the GM-14
position on May 5, 1991. The promotion was not to exceed one year.
However, on May 5, 1992, complainant's temporary promotion was extended
for an additional year with a new �not to exceed� date of May 4, 1993.
On October 1, 1992, ISC-Aberdeen was realigned back under APGSA as
the Directorate of Information Management (DOIM). On May 5, 1993,
complainant's temporary promotion ended and she became a GM-301-13
Supervisory Information Systems Management Specialist, in the Design and
Configuration Branch, Systems and Plans Division. The GM-14 position
to which complainant had been temporarily promoted was not refilled.
Complainant resigned from her position and the federal service in August
1997 to accept voluntary separation incentive pay.
Complainant alleged that in August 1992, she was summoned to the Civilian
Deputy's (CD) (male) office, and when she did he �pretty vaguely�
discussed her role as a GM-14 and that perceptions were important.
Complainant alleged that the CD stated that when you get to a certain
level in the government, you have to be particularly careful about the
public perception of where you go, what you do, and who you are with.
At that time, complainant was going through the first phase of a divorce,
and had been dating a fireman stationed at Aberdeen. Complainant inquired
of the CD if she was only to date a certain level of employees, GS-12s
and above, or was it that she was dating that bothered him. The CD did
not answer the questions and left the office. The complainant waited for
him and upon his return again asked the CD to tell her what he meant and
what had she done to be �written off� like this by him. When he wouldn't
answer, the complainant left the office. The CD testified that sometime
between 1992 and 1996, he was the complainant's second-line supervisor.
The record reflects that the CD held that office until November 1996.
Complainant testified that she was the primary trainer for the DOIM for
executive level employees. Complainant testified that she had a very
good reputation for being able to take the simple or sometime complex
concepts of automation and, without intimidating or offending anybody,
train individuals and provide them the tools they needed to do their job.
After the office discussion with the CD, complainant was no longer
called to the �front office� to do this work. Complainant's first-level
supervisor told her that he was aware that complainant was not supposed
to be in the front office. Complainant was told that the front office
staff was not to call her and that complainant was not supposed to be in
the front office anymore. She was informed that the staff would instead
be calling a male employee to do the work. Complainant testified that
she had built her reputation on being able to support the front office
and she was then cut off from them. At the time, complainant believed
that she had committed �career suicide� in her conversation with CD by her
questioning the perceived �good old boy�authority. Complainant testified
that she was specifically excluded from her duties until January 1995,
when a new colonel arrived.
The record reflects the testimony of three co-workers (females) who
all testified that the CD made inappropriate comments about women and
complainant. On three occasions CD referred to complainant as a �w_ore�.
The CD referred to one of the co-workers, after her surgery, as a �t_tless
b_tch.� A colonel (female) testified that the CD made daily disparaging
remarks about women and their physical appearance which included the size
of their breasts, shape of their legs, weight and facial appearance.
A Small Business Advisor (female) testified, by affidavit, that CD
had been her supervisor. She testified that she heard the CD call the
complainant a �w_ore� when he was talking to another female co-worker.
She testified that the CD was a very prejudicial person and has �said
things� about other women. The FAD stated that the witnesses' testimonies
were not challenged.
Complainant testified in the Office of Complaint Investigations (OCI) fact
finding conference that she was told by two of the females on December
16, 1996, approximately four years after her initial office meeting
with the CD, that complainant had been called, on various occasions,
a �w_ore� by the CD.<2> Complainant testified that the CD never called
her a �w_ore� to her face, never made any sexual comment to her, and
never made any sexual approach to her.
Complainant testified that she believed, at first, that her temporary
appointment was not extended because of her sex. Complainant believed
that as a result of the dating conversation with the CD, she had �broken
rank,�and had broken the rules. Complainant further testified that no
other male had been called into the CD's office to discuss dating as she
had been. Complainant contended that the temporary appointment could
have been extended at the CD's discretion, but she was not accepted
into his circle anymore, based on her dating habits, and because the CD
considered her a �w_ore�.
The CD testified that he was the Civilian Deputy at the facility from
1992 to 1996. The CD testified that his remembrance was foggy and that
the events go quite far back in history. He testified that he probably
had a conversation with the complainant but it was a long time ago and
his memory of it was very vague. He testified that he did not recall
calling the complainant a �w_ore� or referring to her in any derogatory
manner. He did remember mentoring the complainant. CD did not recall
ever talking to other division chiefs or directors about the complainant.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on June 1, 1997.
The complaint was investigated and included a fact-finding conference
conducted by a complaint investigator from the Department of Defense,
Civilian Personnel Management Service, Office of Complaint Investigations.
During the fact-finding conference, extensive dialogue ensued between
complainant, complainant's representative, the investigator, the agency's
representative, and the EEO officer, concerning the accepted charge,
the definitions of sexually hostile work environment and a hostile
work environment due to sex.<3> Sex discrimination as it related to
complainant's temporary position not being extended was also discussed.
Complainant testified at the fact finding conference that her statements
concerning the facts had not changed since her initial complaint, and
that she had always stated them clearly.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant offered no evidence to
substantiate her claim of a hostile work environment or that the failure
to extend her temporary appointment was due to her sex. The FAD stated
that the agency was convinced that the CD referred to the complainant
as a �w_ore� and that the CD's comments were inappropriate, but that
was not �in and of itself� sufficient to constitute a hostile work
environment. The FAD stated that the complainant was not subjected
to an adverse action, loss of pay, or diminished performance rating.
Concerning complainant's performance of the front office duties,
the FAD stated that the agency maintained the right to assign and or
to redistribute job duties to accomplish its mission. Concerning the
extension, the FAD stated that, by regulation, the temporary position
could not have exceeded a two year period.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the CD's comments were sufficient to
establish a hostile work environment, that the complainant was subjected
to an adverse action, and that the agency took no corrective action
concerning the CD's actions to remedy the situation. The agency did
not file a response to the complainant's Brief in Support of Appeal.
ANALYSIS AND FINDINGS
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, if it is sufficiently patterned or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). Harassment
is actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
To establish a prima facie case of sexual harassment, or to prevail on
a claim of gender or sex based harassment, a complainant must show that
she was subjected to unwelcome conduct related to her sex or gender..
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982);
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Meritor Savings
Bank v. Vinson, 477 U.S. 57, 64-65 (1986); 29 C.F.R. �1604.11(a)(d)(1995).
After a careful review of the record, we find there is insufficient
evidence in the record to establish a prima facie case of hostile
work environment due to either sexual harassment or gender/sex-based
harassment because the complainant cannot establish that she was subjected
to unwelcome conduct related to her sex or her gender. Complainant is
unable to demonstrate that the conduct was unwelcomed as to her, when
she did not know that it was occurring.
We affirm the FAD that the complainant was not subjected to a hostile
work environment.
Sex Discrimination
1. Assignment of Duties
It is complainant's obligation to persuade by a preponderance of the
evidence the ultimate issue of whether the agency's action was motivated
by discrimination. Burdine, 450 U.S. at 248; see U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711 (1983); see also O'Connor
v. Consolidated Coin Caters Corp., 517 U.S. 308 (1996); St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993). We find that complainant has met
her burden in this regard. We base our finding that complainant was
subjected to gender discrimination on female co-workers' testimony who
witnessed that after complainant's meeting with CD, he made unflattering
comments about complainant, referred to her as a �w_ore,�and that
complainant was no longer permitted to work in the front office. We note
that a co-worker testified that CD told her that complainant was �nothing
but a �w_ore;�and made disparaging remarks about complainant's work.
Witnesses testified that they heard CD call the complainant a �w_ore,�and
that contemporaneously, only a male was called to do the work previously
done by complainant. We also rely upon the testimony of other witnesses
concerning CD's frequent derogatory gender related slurs in the work
environment. We further find that there is no dispute that the sexual
slurs were used by CD when discussing complainant. The FAD also stated
that complainant was not subjected to an adverse action. However, we
find to the contrary since complainant's job duties/assignments were a
privilege of her employment.
The Commission concludes, given the totality of the circumstances, that
more likely than not, it was complainant's gender that motivated the
agency's action. The Commission finds that complainant has established
by a preponderance of the evidence that she was discriminated against
on the basis of her gender.
2. Extension of Temporary Position
The CD testified that the complainant's appointment was a one-year
appointment. He further testified that there was a �high grade� cap and
that the facility was over their �cap� and it needed to be decreased. The
temporary position announcement did not mention a possibility of either
an extension or a conversion to a permanent position. Complainant was
unaware of other employees in temporary promotions whose promotions were
extended beyond the expiration date. Complainant's temporary position
began on May 5, 1991. On May 5, 1992, complainant's temporary promotion
was extended for an additional year with a new �not to exceed� date of
May 4, 1993. On May 5, 1993, complainant's temporary promotion ended
and she became a GM-301-13 Supervisory Information Systems Management
Specialist, in the Design and Configuration Branch, Systems and Plans
Division. At the time in question, two years was the regulatory limit
on temporary promotions. Complainant served two years in the position.
We find that complainant failed to present sufficient evidence that
the agency's articulated reasons for its actions in not extending her
temporary position were a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the FAD as to complainant's claim of
hostile work environment and sex discrimination as to the extension of
her temporary position but to REVERSE the FAD's finding discrimination
as to complainant's job duties, and to REMAND this case for further
processing consistent with this decision and ORDER below. Since we
affirm the FAD as to the extension of the temporary position, no award
for back pay is included.
ORDER
The agency is ordered to take the following remedial actions.
1) The agency shall provide training for the Civilian Deputy addressing
his responsibilities with respect to eliminating discrimination in the
workplace with an emphasis on sexual discrimination and sexual harassment.
2) The agency shall consider taking disciplinary action against the
Civilian Deputy. The agency shall report its decision. If the agency
decides to take disciplinary action, it shall identify the action taken.
If the agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline.
3) Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice as to her claim for
compensatory damages, reasonable attorney fees, and costs. Complainant
shall submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of her claim for compensatory damages within forty-five (45)
calendar days of the date complainant receives the agency's notice.
The agency shall complete the investigation on the claim for compensatory
damages within forty-five (45) calendar days of the date the agency
receives complainant's claim for compensatory damages. Thereafter, the
agency shall process the claim in accordance with 29 C.F.R. � 1614.108(f).
4) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
5) The agency shall post a notice in accordance with the order below.
6) The agency shall pay complainant's reasonable attorney's fees in
accordance with the paragraph below.
POSTING ORDER (G0900)
The agency is ordered to post at its facility at U.S. Army Garrison,
Aberdeen Proving Ground, MD, copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has
the right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action." 29
C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a
civil action on the underlying complaint is subject to the deadline stated
in 42 U.S.C. 2000e- 16(c) (1994 & Supp. IV 1999). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29
C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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, 2002
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. has occurred at the agency's U.S. Army
Garrison, Aberdeen Proving Ground, MD (hereinafter this facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have subjected an employee to discrimination
based on her sex involving the assignment of duties. The facility
was ordered to determine if the affected employee is entitled to
compensatory damages, reasonable attorney fees, costs, and to ensure
that sex discrimination will not occur again. This facility was also
ordered to provide training to and consider discipline for the agency
official found to have discriminated against the affected employee.
This facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted: _____________________
Posting Expires: _________________
1 The regulation applicable to temporary promotions was changed in
November 1993 to allow a temporary promotion for up to four years.
2 The record reflects that around this time an agency investigation
was being conducted concerning the CD. The subject matter of this
investigation is unknown.
3 Harassment that is targeted at an individual because of his or her
sex violates Title VII even if it does not involve sexual comments
or conduct. Thus, for example, frequent, derogatory remarks about
women could constitute unlawful harassment even if the remarks are
not sexual in nature. See 1990 Policy Guidance on Current Issues of
Sexual Harassment, subsection C(4) ("sex- based harassment - that is,
harassment not involving sexual activity or language - may also give rise
to Title VII liability ... if it is 'sufficiently patterned or pervasive'
and directed at employees because of their sex"). In the instant case,
the Commission will conduct a disparate treatment analysis as well as
an harassment analysis.