Phyllis Benavides, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 17, 2000
01986417 (E.E.O.C. Apr. 17, 2000)

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tour-of-duty was revoked; (2) she was reassigned to the Child Development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.