03990124
04-24-2000
Petitioner, )
Desiree Ellison v. Department of Justice
03990124
April 24, 2000
Desiree Ellison )
Petitioner, )
) Appeal No. 03990124
v. ) MSPB No. BN-0752-98-0068-I-1
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
INTRODUCTION
On July 16, 1999, Desiree Ellison (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission for review of the final
decision of the Merit Systems Protection Board issued on June 18, 1999,
concerning an allegation of discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The Board found that the Department of Justice (agency) had not engaged
in discrimination as alleged by petitioner. For the following reasons,
the Commission concurs with the Board's decision.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that
petitioner failed to prove that the agency discriminated against her
on the bases of race (Black) and sex (female) constitutes a correct
interpretation of the applicable laws, rules, regulations, and policy
directives, and is supported by the record as a whole.
BACKGROUND
Petitioner, formerly employed by the agency as a Secretary (GS-6),
filed a petition with an MSPB administrative judge alleging that she
was the victim of race and sex discrimination when she was removed
from her position on February 2, 1998 and subjected to a hostile
work environment. The administrative judge issued a finding of no
discrimination. In a decision rendered on June 18, 1999, the entire
Board upheld the administrative judge's findings. It is from that
decision that petitioner appeals.
A review of the record indicates that, on December 1, 1997, petitioner was
informed of the agency's proposal to remove her, effective February 2,
1998, on the grounds of making false statements and failing to disclose
information on her application for employment. In the proposal, the
agency alleged that petitioner had given false answers to two questions,
both regarding whether she had been terminated from a job within specified
time periods. The agency further alleged that petitioner failed to
disclose employment information when responding to two questions, both
regarding her previous work history within specified time periods. During
the MSPB hearing, petitioner stipulated that the allegations in the
proposal for removal were true.
Also during the hearing, petitioner testified that she was informed by
another female employee, an intern with the agency during the relevant
time period, that an agency official had stated to her that in order for
her to obtain a certain position, she (the intern) needed to change the
color of "her skin and sleep with [him]." According to petitioner,
this alleged remark made her very uncomfortable in the workplace.
In a sworn affidavit, the agency official denied making the statement.
He did, however, admit that he may have used some racially derogatory
terms on occasion but those terms were never used in front of petitioner.
The Commission notes that petitioner did not claim that she was privy
to any of the racially derogatory statements.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board regarding
an allegation of discrimination on the bases of race and sex constitutes
a corrective interpretation of any applicable law, rule, regulation or
policy directive and is supported by evidence in the record as a whole.
29 C.F.R. �1614.305(c).
Removal
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973). For petitioner to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. Id. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the petitioner bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner 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 petitioner has established
a prima facie case to whether he has demonstrated by a preponderance
of the evidence that the agency's reasons for its actions merely were a
pretext for discrimination. Id.; see also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983). In this
case, the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its action. Specifically, the agency stated
that petitioner was terminated for giving false information and failing
to disclose required information on her application for employment.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, petitioner now bears the burden of
establishing that the agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Petitioner can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). We find that
petitioner has failed to meet this burden. Petitioner offered no
evidence indicating that her removal was grounded in discrimination.
In fact, during the MSPB hearing, she stated that she was not aware of
any other employees that had provided untruthful answers and/or evaded
questions altogether on their employment applications that were treated
more favorably than she. As such, we find that she failed to prove that
the agency's stated reasons constitute an effort to mask discriminatory
animus.
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. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
Petitioner alleged that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, petitioner must show the existence of four elements: (1)
that she is a member of a statutorily protected class; (2) that she
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on the statutorily protected class; and (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. �1604.11.
Regarding the derogatory statement made to the intern, the agency official
denied having made the remark. Petitioner stated that she did not hear
the agency official make the remark; instead she testified that she
heard about them from the intern. Because the official denied making
the statements and petitioner admittedly did not hear them, we have
insufficient evidence with which to conclude that the statements were
actually made. Consequently, we find that petitioner failed to show
the existence of the second element (i.e., that she was subjected to
harassment in the form of unwelcome verbal or physical conduct),<1> and
therefore, failed to establish a prima facie case of hostile environment
harassment.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the Board's finding
of no discrimination. The Commission finds that the Board's decision
constitutes a correct interpretation of the laws, rules, regulations,
and policies governing this matter and is supported by the evidence in
the record as a whole.
STATEMENT OF RIGHTS - ON APPEAL
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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 24, 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 of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the MSPB and the agency on:
________________ __________________________________
DATE Equal Employment Assistant
1 We note that, although the agency official accused of making derogatory
statements toward the intern admitted to having used racially derogatory
terms on occasion in the workplace, petitioner did not complain about
these racially derogatory statements. In fact, there is no evidence
in the record indicating that she was even aware of them. We strongly
recommend, however, that the agency provide training on discrimination law
to the agency official. Racially derogatory comments are inappropriate
in the federal workplace and, while not sufficient to prove racial
discrimination in this particular case, could subject the agency to
liability in some circumstances.