01a00171
04-04-2000
Paulette H. Burney, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Paulette H. Burney, )
Complainant, )
) Appeal No. 01A00171
v. ) Agency Nos. 98.082
) 98.083
William S. Cohen, ) Hearing Nos. 150-99-8205X
Secretary, ) 150-99-8186X
Department of Defense, )
(Army & Air Force Exchange Service), )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaints of
unlawful employment discrimination on the bases of race (Black), sex
(Female), and reprisal, 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 pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether complainant has shown by preponderant
evidence that the alleged incidents constituted discrimination against
her on the basis of race and/or reprisal or sexual harassment.
BACKGROUND
The record reveals that complainant, at the time of the incidents, was a
Manager Trainee at the agency's MacDill AFB Main Exchange. Complainant
filed two formal EEO complaints with the agency on April 18, 1998.
In one complaint, she alleged that the agency had discriminated against
her on the bases of race and reprisal when: (1) on or about April 6,
1998, complainant received a lower performance evaluation report than
what she was told on or about February 26, 1998, because she contacted
an EEO counselor; (2) she was not promoted locally but transferred
from MacDill AFB; (3) around January 16, 1997, an associate outside
of her protected class was placed in authority over complainant; (4)
around December 8, 1997, complainant was required to dress in casual
clothes when working in the stock room; (5) on or about December 11,
1997, complainant did not receive a superior accomplishment award; (6)
on or about December 11, 1997, complainant recommended an associate for
an award but was not given an explanation for the denial of that award;
(7) on or about December 6, 1997, complainant received a verbal warning
from her supervisor; (8) on or about November 4, 1997, complainant was
not selected for a softliness manager position; (9) around September
17, 1997, complainant was not given a red name tag to wear; and (10)
on or about July 29, 1997 and August 20, 1997, complainant was told by
others that she was not wanted and accused of stealing. In her second
complaint, complainant alleged that from July 1997 through April 1998,
she was subjected to sexual remarks by her supervisor based on her race
and sex. In particular, complainant alleged that her supervisor made a
remark which contained a sexual innuendo and stated that she must like
the athletic type.
The agency accepted the complaints for investigation. Upon receiving
the report of investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). Complainant later withdrew her request
for a hearing and instead asked that the agency issue a FAD immediately.
On September 7, 1999, the agency issued its FAD finding that complainant
failed to state a prima facie case of race and sex discrimination.
The FAD further noted that had complainant established a prima facie
case of race and sex discrimination, she failed to demonstrate by
preponderant evidence that the agency's articulated reasons were pretext
for discrimination.
This appeal followed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's determination
of complainant's disparate treatment claims because the preponderance
of the evidence of record does not establish that discrimination or
retaliation occurred.
As to complainant's claim of harassment, the Commission finds that the
FAD did not apply the appropriate analysis. Complainant alleged that
she suffered from discriminatory harassment based on her race and sex.
It is well-settled that harassment based on an individual's sex and
race is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a claim of harassment under those bases,
the complainant must show that: (1) she belongs to the statutorily
protected classes; (2) she was subjected to unwelcome conduct related to
her membership in those classes; (3) the harassment complained of was
based on sex and race; (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).
In this case, complainant alleged that her supervisor made two remarks
to her from July 1997 through April 1998, which she felt were sexual in
nature and were denied by her supervisor. Upon review of the record,
the Commission concludes that complainant demonstrated that she is a
member of the protected classes and that the alleged incidents were
related to her sex and offensive in nature. However, the Commission
finds that complainant failed to establish that the comments were related
to her race or were unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment.
Therefore, the Commission finds that complainant failed to demonstrate
that she suffered from discriminatory harassment. Accordingly, we affirm
the FAD with regard to complainant's allegation of discrimination based
on sexual harassment.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and the agency's response, the Commission affirms
the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
April 4, 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 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.