01986417
04-17-2000
Phyllis Benavides, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Phyllis Benavides v. Department of the Navy
01986417
April 17, 2000
Phyllis Benavides, )
Complainant, )
) Appeal No. 01986417
v. ) Agency No. 9660514001
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning her claim that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et
seq.<0> The appeal is accepted by the Commission in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues presented herein are whether the complainant has established
that the agency discriminated against her based on sex (female), age
(45), and reprisal (prior EEO activity) when: (1) the extension of her
tour-of-duty was revoked; (2) she was reassigned to the Child Development
Center; (3) she was denied reentry to her base; (4) she was allegedly
harassed; and (5) she was not selected for the position of Recreation
Program Manager.
BACKGROUND
The complainant filed a formal complaint in June 1996 in which she raised
what have been identified above as Issues 1 through 5. Following an
investigation, the complainant did not request an EEO hearing and the
agency thereafter issued a final decision (FAD) dated July 7, 1998,
finding no discrimination. It is from this decision that the complainant
now appeals.
Issues 1 through 4
During the period in question, the complainant was employed as a Financial
Resources Administrator, Morale, Welfare, and Recreation Department (MWR),
at the agency's base (the Base) at Guantanamo Bay, Cuba. The complainant
was appointed to this position in 1994 with a tour-of-duty not to exceed
two years. The record reveals that, in October 1995, the complainant
received a two-year extension of her appointment.
In early 1996, an audit of MWR revealed a number of problems which were
characterized by the Base's Executive Officer (Responsible Official 1,
RO 1) as "significant internal control weaknesses ... that made the fund
vulnerable to fraud, waste, and abuse." RO 1 testified that the "majority
of the review's findings were directly related to the duties performed
by the complainant." As a result of these problems, the complainant
was informed by the Base's commanding officer (RO 2) in February 1996
that the two-year extension she had received was being revoked.
In March 1996, it was brought to management's attention that the
complainant's husband, in his capacity as MWR's Operation Assistant, was
stealing MWR property. In response, management conducted an investigation
which revealed that her husband had, in fact, stolen thousands of dollars
in government property, and a search of their living quarters revealed
several boxes of stolen property that had been prepared for shipment
to a private address. According to RO 1, in order to safeguard MWR
from further loss, the complainant was reassigned to the Base's Child
Development Center (CDC) pending the outcome of the investigation. In the
wake of the investigation, the complainant's husband was issued a removal
and debarment order and the record reveals that both individuals left the
Base at the end of March 1996. Although the complainant asked to visit
the Base in June 1996, RO 2 denied her request on the grounds that her
"presence would not be in the best interests of the installation as her
presence would be prejudicial to good order and discipline."
Issue 5
The record reveals that the complainant applied for the position of
Recreation Program Manager, GS-1101-12, in January 1996. According to
the complainant, she subsequently spoke with the Position's recommending
official (RO 3) and was told that he wanted to select another individual
(Employee A) for it. The complainant states that, in addition to saying
that Employee A got along with everyone, RO 3 stated that he "is young
and has energy." It is apparent from the record that Employee A was
never offered the position because the vacancy announcement was canceled
in May 1996.
ANALYSIS AND FINDINGS
Issues 1 through 3
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
is a three-step process. The complainant has the initial burden of
establishing a prima facie case. If the complainant meets this burden,
then the burden shifts to the agency to articulate some legitimate,
nondiscriminatory reason for its challenged action. The complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
articulated by the agency was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This analysis is equally applicable to claims brought under the ADEA. Loeb
v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
We find that the complainant has not established a prima facie case based
on either sex or age. In so finding, we note that the complainant has
not identified an employee who, in similar circumstances, was treated
differently than she.<0> Assuming, arguendo, that the complainant
could establish a prima facie case of discrimination, we find that the
agency has met its burden of articulating legitimate, nondiscriminatory
reasons for the actions in question. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). With regard to Issue 1,
RO 1 testified that the complainant's extension was revoked due to the
problems identified in MWR. Regarding Issue 2, RO 2 testified that
the complainant was reassigned to CDC pending an investigation into
reports that her husband was stealing property from MWR. Finally,
RO 2 explained that, in effect, he denied the complainant's subsequent
request to visit the Base due to her involvement in her husband's theft
of the aforementioned property.
At this point, the complainant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination. The
complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
Although the complainant argues that it was unfair to hold her accountable
for the problems in MWR, the Commission will not second-guess an agency's
personnel decisions absent evidence of discriminatory motive. In this
case, we find nothing discriminatory about the decision to hold the
complainant partially accountable for the problems in MWR. Similarly,
there is nothing in the record which indicates that the decisions to
reassign the complainant to CDC and deny her visitation request were in
any way related to either her sex or age. Rather, it is clear from the
record that both decisions were premised on the fact that the complainant,
at the very least, was aware that her husband had stolen property from
MWR and took no action. Accordingly, the Commission finds the complainant
has not established that the agency's articulated reasons are pretextual,
and, as such, has not established either sex or age discrimination with
regard to Issues 1 through 3.
Finally, we note that the complainant alleged that the aforementioned
actions constituted retaliation for her prior EEO activity. Even
assuming, however, that the complainant could establish a prima
facie case of retaliation, we have already found that the agency
articulated legitimate, nondiscriminatory reasons for Issues 1 through 3.
The complainant has not established that these reasons are unworthy of
belief nor has she adduced any evidence indicating that the actions were
related to her EEO activity.
Issue 4
It is well-settled that harassment based on an individual's sex,
age, and prior EEO activity 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 and engaged in
prior EEO activity; (2) she was subjected to unwelcome conduct related
to her membership in those classes and her prior EEO activity; (3)
the harassment complained of was based on sex, age, and her prior EEO
activity; (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). If the complainant satisfies
the five elements, then the agency is subject to vicarious liability
insofar as the harassment would have been "created by a supervisor with
immediate ... authority over the [complainant]." Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999), at 4 (citing Burlington Industries, Inc.,
v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998), and Faragher
v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)).<0>
In this case, the complainant has not explicitly identified the actions
she believes constitute harassment. Assuming, however, that it is
those actions referenced in Issues 1 through 3, we find that they do not
constitute harassment. Not only were those actions taken for reasons
unrelated to the complainant's sex, age, or prior EEO activity, but
they were not sufficiently severe or pervasive to the point where they
altered the complainant's employment and created an abusive working
environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). Accordingly, we find the complainant has not established that
she was discriminatorily harassed.
Issue 5
As discussed, although Employee A was tentatively selected for the
position of Recreation Program Manager, he was never offered the position
because the vacancy was canceled. Because the position was never actually
filled, we find the complainant has not established that she suffered a
harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Therefore, we find that the
complainant is not aggrieved with regard to this issue. Id. Accordingly,
we find that this issue fails to state a claim and that, as such, the
complainant has not established discrimination with regard to this issue.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD and find the
complainant has not established that she was discriminated against
as alleged.
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:
April 17, 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
01 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.
02 Although comparative evidence is only one method of establishing a
prima facie case, the complainant has not presented any other evidence
sufficient to support an inference of discrimination under the alleged
bases. See Enforcement Guidance on O'Connor v. Consolidated Coin Caters
Corp., EEOC Notice 915.002 (September 18, 1996).
03 When the harassment does not result in a tangible employment
action, the agency can raise an affirmative defense to liability which
it can meet by demonstrating: (a) that it exercised reasonable care
to prevent and correct promptly any harassing behavior; and (b) that
the employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, at 12. This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or reassignment) being taken against the employee. Id. at 7.