01983483
01-06-2000
Patricia S. Kendrick, Complainant, v. Bruce Babbitt, Secretary, Department of Interior, (National Park Service) Agency.
Patricia S. Kendrick v. Department of Interior
01983483
January 6, 2000
Patricia S. Kendrick, )
Complainant, )
) Appeal No. 01983483
v. ) Agency No. FNP97053
)
Bruce Babbitt, )
Secretary, )
Department of Interior, )
(National Park Service) )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of race (White) and sex (female), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq.<1> The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the Commission AFFIRMS
the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was
employed as a WG-5 Animal Caretaker at the agency's Oxen Hill Farm,
Maryland, facility. Complainant claims that she was discriminated
against, harassed, and subjected to a hostile work environment as
evidenced by the following incidents:
1. On January 21, 1997, she was not promoted to the position of Park
Ranger;
2. On January 15, 1997, the Chief of Interpretation and Visitor Services
(C), advised her to learn to accept the hostile attitude of her supervisor
(S) or leave her job;
3. In January 1997, S accused her of not feeding the rabbits on January
14, 1997, and called her a liar;
4. On December 24, 1996, S moved her office, changed her schedule,
and assigned her additional duties;
5. On December 11, 1996, S told her that she was responsible for cleaning
the horse stalls;
6. On September 6, 1996, S pointed at her and addressed her in a loud
angry voice accusing her of not feeding the animals and of not wanting
her job; and
7. In June 1996, S accused her of not milking the cow which resulted
in the cow developing mastitis.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion of
the investigation, the agency issued its FAD, finding no discrimination.
Complainant now appeals this determination, but provides no supporting
statements or comment. The agency requests that we affirm its FAD.
Regarding incidents 1 and 4,<2> the FAD concluded that complainant
established a prima facie case of race discrimination, but not sex
discrimination because other female employees had been promoted into
Ranger positions. The FAD further found that the agency articulated
legitimate nondiscriminatory reasons for its actions, namely that
complainant was not qualified for the Ranger position because she lacked
the required number of college credits in the natural sciences and because
her current experience as an animal caretaker was not sufficient to
qualify her for a Ranger position. The FAD also found that S endeavored
to facilitate complainant's promotion not only by placing her in the same
location as the other rangers and giving her the opportunity to carry
out some ranger activities, but also worked with the personnel office
and complainant to make sure her application was complete. The FAD then
found that the complainant was unable to establish that these reasons
were a pretext for discrimination, providing only her opinion that if
she were a Black male she would have been promoted to a Ranger position.
In addressing the remaining incidents, the FAD concluded that complainant
established a prima facie case of race discrimination, but not sex
discrimination because complainant provided only opinion, and no evidence,
regarding the comparative treatment of male employees. The FAD then
determined that the agency articulated legitimate nondiscriminatory
reasons for its actions, finding, in essence, that S was merely carrying
out routine supervisory duties in instructing complainant to perform
her tasks, and that her direction to do so was particularly appropriate
in these circumstances given a Congressional level complaint regarding
the care of the animals. The FAD also found that the record did not
corroborate complainant's contention that S's demeanor was hostile or
threatening. The FAD also found that C's comment was misconstrued and
taken out of context, and that she was attempting to counsel complainant
regarding her difficulties with S. In its pretext analysis, the FAD
found that complainant produced no evidence to show that any of these
reasons were a pretext for discrimination, noting that she was unable
to substantiate that three White female employees had left the facility
due to S's harsh treatment.<3>
The FAD also determined that complainant failed to establish a prima
facie case of hostile environment harassment.<4> Specifically, the FAD
found that these incidents were not sufficient in severity to constitute
harassment or a hostile working environment, noting the seven month
period of time in which these incidents were alleged to have occurred,
the lack of corroborating evidence regarding S's hostile demeanor,
and evidence and testimony establishing deficiencies with the level
of care received by the animals. In this regard, the FAD found that
the level of supervisory control exercised by S was appropriate because
complainant was the only animal caretaker, and that complaints regarding
poor animal care fell within her primary responsibilities. The FAD also
found that the evidence failed to show that complainant perceived S's
conduct as threatening, or that it interfered with her work performance,
which also defeated complainant's harassment claim.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Jackson v.U.S. Postal Service,
Appeal No. 01972555 (April 15, 1999), the Commission concurs with the
agency's findings and conclusions as set forth above. Our review of
the record reveals that although complainant genuinely believes that
she has been subjected to sex and race discrimination and hostile work
environment harassment, she fails to produce any probative evidence to
support her many contentions in this regard. The record is clear that
complainant was not qualified for promotion to a Ranger position, and
that S nevertheless made many efforts on her behalf to get her started
on this career path, and that this was done at complainant's request
and for her benefit. Moreover, although complainant may have indeed
perceived S's actions as harassing, nothing in the record substantiates
this, with affidavit testimony instead indicating that complainant was
observed to engage in angry behavior, and that she resented instruction
from S, and often did not comply with her directions. Review of the
record reveals that most of these incidents started with S directing
complainant in some manner, and the situation escalating to a point
where one or both parties became confrontational. However, we do not
find that S harassed complainant or created a hostile work environment,
noting in particular that complainant was not disciplined regarding
her failure to perform certain tasks, or regarding the Congressional
complaint concerning poor animal care. We also find that S's directions
where well within the purview of her supervisory responsibilities, and
that her concerns were solely related to the proper care of the animals,
especially in light of the Congressional complaint. We find nothing
in the record of probative value to indicate that S's actions were
motivated by discriminatory animus toward complainant's race or sex,
or that her actions were designed to harass complainant.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
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:
January 6, 2000
Date Carlton M. 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1On 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.
2The FAD treated these two incidents together because complainant's
move, change of schedule, and additional duties were undertaken for
the purpose of improving her qualifications for, and application to,
the position of Park Ranger.
3We clarify the FAD in this regard because the record contains affidavits
from two of these White female employees who testify that they left
the facility because S over-worked them and treated them harshly.
However, we find that these affidavits carry little probative value
because although they both claim that S's treatment was race-based,
the record contains no corroborating evidence to support this opinion.
Moreover, we note that one of these affidavits is unsworn, and that
other affidavit testimony consistently describes S as a tough manager
with demanding standards and that her supervision to this end is carried
out without regard to the race or sex of her subordinates.
4Although the FAD did not specifically state this as a conclusion, we
infer this determination from the findings and analysis set forth on
this issue.