Shirley J. Williams, Complainant, William S. Cohen, Secretary, Department of the Army, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionApr 18, 2000
01986200 (E.E.O.C. Apr. 18, 2000)

01986200

04-18-2000

Shirley J. Williams, Complainant, William S. Cohen, Secretary, Department of the Army, (Defense Logistics Agency), Agency.


Shirley J. Williams v. Department of the Army

01986200

April 18, 2000

Shirley J. Williams, )

Complainant, )

)

) Appeal No. 01986200

) Agency No. CA98001

)

William S. Cohen, )

Secretary, )

Department of the Army, )

(Defense Logistics Agency), )

Agency. )

______________________________)

DECISION

The complainant timely initiated a request to the Equal Employment

Opportunity Commission (EEOC) from the final decision of the agency

concerning complainant's claims that the agency violated Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

The appeal is accepted in accordance with 64 Fed.Reg. 37,644, 37,659

(1999) (to be codified at 29 C.F.R. � 1614.405). <1>

The issues on appeal are whether complainant was discriminated against:

(1) on the basis of sex (female) when, from approximately July 17-24,

1997, she was sexually harassed by a female co-worker and trainer

(the trainer);

(2) on the basis of reprisal for rebuffing the advances of the trainer,

when, in August 1997, her workload was reduced to "nothingness";

(3) on the basis of religion (Pentecostal) when, on or about July 24,

1997, she was subjected religious epithets, jokes, and comments by

co-workers; and,

(4) on the basis of race (African-American) when she was denied adequate

and active training, and feedback relating to her training, while she was

in the Acquisition Training Program (also known as the "Intern Program"

or the "Entry Level Program for Procurement").

At the time of the claimed discrimination, complainant was employed as

a GS-1102-05 Contract Specialist in the Acquisition Training Program

at the agency's Defense Supply Center, Columbus, Ohio. She filed a

formal EEO complaint raising the issues stated above and the complaint

was investigated. When complainant did not request an EEOC hearing in

a timely manner, the agency issued a final agency decision (FAD), which

found no discrimination. Complainant now appeals the FAD but submits

no specific contentions on appeal.

Issue 1

The agency found that complainant failed to establish a prima facie

case of sexual harassment. In this regard, the agency concluded that

complainant only claimed two instances of sexual behavior by CO-1:

(1) CO-1 "touched" complainant on the knee; and, (2) CO-1 reached out

towards complainant's shoulder/breast. The agency stated that complainant

provided no evidence, other than her own uncorroborated testimony, that

any of CO-1's behavior towards her was inappropriate. The agency also

concluded that it articulated a legitimate, nondiscriminatory explanation

for its actions which complainant did not prove was pretextual.

The agency stated that complainant's supervisor (S-1; Black, male,

Protestant) had no knowledge of any of the claimed inappropriate behavior

by the trainer. According to S-1, the trainer had informed him within

the first month of training that complainant had difficulty following

instructions and was hard to work with. S-1 stated that consequently,

he had held a meeting between complainant and the trainer. According to

S-1's version of this meeting, complainant resisted instructions and

informed that trainer that she (complainant) would challenge the trainer's

instructions if necessary. S-1 stated that he informed complainant that

she needed to change her behavior. The agency noted that the trainer's

record was unblemished and that complainant had no evidence, other than

her bare assertions, to support her claim of sexual harassment.

Issue 2

The agency found that complainant failed to establish a prima facie

case of reprisal discrimination. The agency also concluded that it

articulated a legitimate, nondiscriminatory explanation for its action,

that during the short period of time that complainant was without a

trainer, and consequently without work, management was not retaliating

but was attempting to arrange a transfer to meet complainant's demands

to be relocated to another work group. The agency additionally concluded

that complainant did not prove pretext.

Issue 3

The agency found that complainant established a prima facie case of

religious discrimination but that the agency articulated a legitimate,

nondiscriminatory explanation for the claimed action which complainant

did not prove was pretextual. The agency stated that the trainer,

whom complainant stated initiated the religious harassment, denied

participating in or knowing of any such incidents. According to the

agency, complainant's claim was not supported by any of the eleven

witnesses who testified in the case herein. Finally, the agency noted

that, according to the trainer, complainant threatened to "sic Jesus on"

the trainer if she did not make more positive comments about complainant's

work.

Issue 4

The agency found that complainant failed to establish an inference of

racial discrimination. In this regard, the agency stated that complainant

refused to work with two different trainers who volunteered to work with

her and caused two other trainers who were assigned to train with her

to request reassignment. The agency also concluded that it articulated

legitimate, nondiscriminatory reasons for its actions in that complainant

had been provided with numerous trainers but was unable to work with

any of them.

Finally, the agency found that complainant did not establish pretext.

The agency stated that considerable evidence showed that the trainer

provided detailed feedback to complainant regarding her work. The agency

noted that a co-worker (CO-1; African-American, female) stated that

complainant received more feedback than she received.

Findings

Complainant's complaint constitutes in part, a claim of disparate

treatment which the agency properly analyzed under the three-tiered

analytical framework outlined in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248

(1981); Hochstadt v. Worcester Foundation for Experimental Biology,

Inc., 425 F.Supp. 318, aff'd, 545 F.2d 222 (1st. Cir. 1976). See also

McKenna v. Weinburger, 729 F.2d 783, 791 (D.C. Cir. 1984) and Burrus

v. United Telephone Co. of Kansas, Inc., 683 F.2d 339 (19th Cir. 1982);

and, Cobb v. Treasury, EEOC Request No. 05970700 (March 13, 1997).

Complainant also raised a claim of sexual harassment which the agency

analyzed under Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

Applying these legal standards, the Commission finds that the agency

properly determined that complainant was not discriminated against with

regard to any of her claims. We agree with the agency that complainant

provided no evidence, other than her bare assertion, to establish her

claim of sexual harassment by the trainer. After carefully reviewing

the testimony of the trainer, which we found persuasive, and the record

as whole, we find that complainant's testimony, alone, is not enough to

prove her claim. Concerning complainant's workload and the feedback and

help she received, we also find the agency's explanations persuasive.

It appears from the record that the agency made numerous efforts to

respond to complainant's complaints about her trainers and the amount of

help she was receiving. Regarding the religious discrimination claim,

we agree that there is absolutely no evidence to substantiate this claim.

In short, we find that complainant did not meet her burden of proving,

by a preponderance of the evidence, that she was discriminated against

as alleged.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

04-18-00

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 complainant, complainant's representative

(if applicable), and the agency on:

_______________________

Date

1 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.