Tammy R. Toye, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
05a00061 (E.E.O.C. Mar. 16, 2000)

05a00061

03-16-2000

Tammy R. Toye, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Tammy R. Toye v. Department of the Army

05A00061

March 16, 2000

Tammy R. Toye, )

Complainant, ) Request No. 05A00061

) Appeal No. 01980114

v. ) Agency No. COL95AR378E;

) COL95AR379E

) Hearing No. 120-96-5133X;

) 120-96-5134X

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

On October 14, 1999, Tammy R. Toye (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Tammy R. Toye v. Department of the Army,

EEOC Appeal No. 01980114 (October 5, 1999).<1> EEOC Regulations provide

that the Commissioners may, in their discretion, reconsider any previous

Commission decision where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.405(b)). For the reasons set

forth herein, complainant's request is denied. However, the Commission

exercises its discretion and reconsiders the previous decision on its

own motion for the reasons discussed herein.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed

the agency's final decision, which adopted the Administrative Judge's

recommended decision finding no discrimination or retaliation.

BACKGROUND

The record reflects that complainant was initially hired by the Department

of the Army as a community planner at the GS-7 level. Thereafter,

complainant was promoted to the GS-11 level as a community planner. In

February 1995, complainant initiated timely contact with an EEO Counselor

claiming that she had been unlawfully discriminated against based on her

race, religion, color and gender. Unable to resolve the matter

informally, complainant filed a formal complaint in March 1995. Therein,

complainant claimed that she was unlawfully discriminated against when:

she did not receive the same opportunities for training as her white

co-workers did; she did not receive the same type of work assignments as

her white co-workers; she was not promoted as her white co-workers were;

and she was subjected to a hostile work environment because her white

co-workers would make racial epithets and hit her cubical. Thereafter, in

March complainant again sought EEO counseling claiming that she was being

retaliated against and subjected to continuous harassment. Unable to

informally resolve this matter, complainant again filed a formal complaint

in March 1995. Both complaints were subsequently consolidated for processing

and investigation.

Having received the right to request a final agency decision or a

hearing before an administrative law judge, complainant requested to

have a hearing. During the hearing, direct testimony was provided

by complainant's witness that he heard racial epithets being uttered

about complainant and that he witnessed her cubical being struck by her

co-workers. Supplementing the hearing transcript, the investigative file

reflects that two other co-workers, who did not testify at the hearing,

witnessed complainant's cubical being struck by other co-workers.

Moreover, during the hearing, the agency admitted, that even though it

is unsubstantiated, it is conceivable that racial epithets were in

fact uttered. The agency further admitted that complainant's cubical

was being struck by her co-workers but, insisted that any contact with

the cubical was accidental. Furthermore, complainant testified that she

was not being allotted the same opportunities for training as her white

coworkers were. However, the agency provided that with regards to the

issue of training, it was established that training is based upon ones job

related duties and experience. With respect to assignments, complainant

testified that she was not made a project manager and she was not assigned

developmental projects. On the other hand, the record goes unrebutted,

that complainant was in fact assigned as a study manager because community

planners could not be assigned project manager positions. And it is also

unrebutted that she failed to apply for any developmental projects,

which was required before one could be assigned. As per the issue of

promotions, testimony was provided that indicated that similar situated

employees were promoted, but it was through a competitive process that

required applying, which complainant did not do. During the hearing,

the administrative judge also allowed testimony to be developed with

regards to the issuance of monetary awards. With respect to this issue,

complainant claims that she has not received the same number and amounts

of awards as her white co-workers. However, the agency testimony that

awards are primarily contingent upon ones length of employment and

performance with the agency remained unrebutted by complainant. In

addition, testimony was provided by the agency with respect to the issue

of retaliation. With regards to this issue, complainant claims that she

was retaliated against when she was called in to her supervisors office to

discuss an alleged remark that she had made to a fellow employee. In

response, the agency offered that complainant was not being retaliated

against for her prior complaints when they discussed with her the statement

which she allegedly made to her co-worker. The agency further stated that

the discussion they had with her regarding the alleged statement was not

disciplinary in nature and was not recorded in any of her files by the

agency.

In his recommended decision, the administrative judge, relying on the

hearing transcript and investigative file, found that complainant was

not discriminated or retaliated against. Specifically, he found that

complainant failed to establish a prima facie case of discrimination

with regards to training, assignments, awards, retaliation and

promotions. Furthermore, the recommended decision found that if any acts

were taken against the complainant, they did not individually rise to

a level of severity to warrant a finding of a hostile work environment.

On appeal, the previous decision affirmed the agency's decision to adopt

the administrative judges recommended decision finding no discrimination

or retaliation. In her request for reconsideration, complainant fails

to demonstrate that the appellate decision involved a clearly erroneous

interpretation of material fact or law, or that the previous decision

will have a substantial impact on the policies, practices or operations

of the agency.

The agency did not submit any statement in response to complainant's

request for reconsideration.

ANALYSIS AND FINDINGS

The Commission may, in its discretion, reconsider any previous decision

when the party requesting reconsideration submits written argument or

evidence which tends to establish that at least one of the criteria

of 29 C.F.R. �1614.405(b) is met. For a decision to be reconsidered,

the request must contain specific information that meets the criteria

referenced above.

Complainant's allegations of discrimination based on race, color,

religion, gender and reprisal constitute claims of disparate

treatment. Allegations of disparate treatment are analyzed under the

tripartite scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-804 (1973) and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed, 545 F.2d 222

(1st Cir. 1976). Although the initial inquiry in a discrimination case

usually focuses on whether the complainant 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.

Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,

1990). In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether s(he) has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

were merely a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).

Therefore, in the present case, the Commission will bypass the prima facie

stage of the analysis and focus on whether the agency's explanations for

its actions were a pretext for discrimination based on race, color,

religion, gender and reprisal.

TRAINING

With regards to the issue of training, it is the decision of the

Commission to bypass the prima facie stage of the analysis and focus on

whether the agency's explanations for it actions were in fact pretext for

discrimination. Complainant has argued that she has not been afforded the

same opportunities for training as her white co-workers. In response, the

agency has articulated that training is contingent upon ones experience

and job related duties. In this case, complainant has failed to establish

that employees outside her protected class in fact received training that

was not related to ones job or experience. Therefore, the complainant

has failed to rebut the agency's legitimate nondiscriminatory reason.

Accordingly, it is the decision of the Commission to AFFIRM the previous

decision finding no discrimination with regards to the issue of training.

PROMOTIONS

With regards to the issue of promotions, it is the decision of the

Commission to bypass the prima facie stage of the analysis and focus on

whether the agency's explanation for it actions were in fact pretext for

discrimination. Complainant has argued that she has not been promoted to

the GS-12 level while similar situated white employees have been promoted

to that level. The agency responded to this accusation by articulating

that employees who are community planners can only be promoted to the

GS-12 level by a competitive promotion, which requires one to apply.

In this case, complainant has failed to establish that she even applied

for the position let alone that other community planners did not have

to competitively apply for the GS-12 position. Therefore, complainant

has failed to rebut the agency's legitimate nondiscriminatory reason.

Accordingly, it is the decision of the Commission AFFIRM the previous

decision finding no discrimination with regards to the issue of

promotions.

HIRING

With regards to hiring, it is the decision of the Commission to bypass

the prima facie stage of the analysis and focus on whether the agency's

explanation for it actions were in fact pretext for discrimination.

Complainant argues that she should have been hired at a level higher

than GS-7 like her white co-worker Ms. Griff, which she claims to have

been hied at a GS-9 level. Complainant's claim fails because the record

goes unrebutted that Ms. Griff was hied at a GS-7 level. Therefore,

it is the decision of the Commission to AFFIRM the previous decision

finding no discrimination with respect to hiring.

AWARDS

With regards to the issue of awards, it is the decision of the Commission

to bypass the prima facie stage of the analysis and instead focus on

whether or not the agency's explanation was in fact pretext for

discrimination. Complainant argues that she was discriminated against

when she did not receive as many and as large of awards as her white

co-workers. The agency responded by asserting that wards were distributed

based on performance and one length of employment with the agency.

Complainant, has failed to present evidence which would establish that this

explanation is in fact a pretext for discrimination. In fact, complainant

has failed to supply any evidence to demonstrate that similar situated

employees outside her protected class with the same length in service and

performance ratings received larger and more awards than complainant.

Therefore, complainant has failed to rebut the agency's legitimate

nondiscriminatory reason for its actions. Accordingly, it is the

decision of the Commission to AFFIRM the previous decision finding no

discrimination with respect to the issue of awards.

ASSIGNMENTS

With respect tot he issue of assignments, it is the decision of the

Commission to bypass the prima facie stage of the analysis and instead

focus on whether or not the agency's explanation was in fact pretext

for discrimination. Complainant has argued that she was discriminated

against when she was not made a project manager and when she did not

receive developmental projects. The record reflects that the agency

has explained that the complainant's division does not appoint project

managers, but rather the agency appoints study or program mangers.

In addition, the agency has asserted that developmental projects must

be applied for and complainant did not apply for any such projects.

The record further reflects that complainant was in fact appointed as

a study manager but it does not reflect that complainant did respond to

requests for developmental projects. Furthermore, complainant has failed

to demonstrate that employees outside of her protected group received

developmental projects without having to apply for such or that they

received more study/program manager positions than she. Therefore,

the complainant has failed to rebut the agency's legitimate

nondiscriminatory reason. Accordingly, it is the decision of the

Commission to AFFIRM the previous decision finding no discrimination

with respect to the issue of assignments.

RETALIATION

To establish a prima facie case of reprisal discrimination, appellant

must show that (1) she engaged in prior protected activity; (2) the

acting agency official was aware of the protected activity; (3) she was

subsequently disadvantaged by an adverse action; and, (4) there is a

causal link between the protected activity and adverse action. Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,

324 (D. Mass.), aff'd, 545 F. 2d 222 (1st Cir. 1976) ; Manoharan v.

Columbia University College of Physicians and Surgeons, 842 F.2d 590, 593

(2d Cir. 1988). The causal connection may be shown by evidence that the

adverse action followed the protected activity within such a period of

time and in such a manner that a reprisal motive is inferred. Grant v.

Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).

In the present case, complainant has satisfied the first two prongs of

the above stated test for finding retaliation. However, complainant

has not shown that she was in fact subjected to an adverse action.

Here, complainant claims that when she was called into her supervisors

office to discuss an alleged remark made by her, she was subjected to

an adverse action. The Commission, on the other hand, finds that this

was merely an official discussion, defining that the alleged remark,

if in fact made, was inappropriate in the work place. This Commission

has consistently held that official discussions alone do not render an

employee aggrieved. See Miranda v. United States Postal Service, EEOC

Request No. 05920308 (June 11, 1992); Devine v. United States Postal

Service, EEOC Request Nos. 05910268, 05910269 and 05910270 (April

4, 1991). In the present case, we find no claim by complainant that

the discussion was recorded in any personnel or supervisory files, nor

that it can be used as a basis for any subsequent disciplinary action.

See Divine, supra. The Commission rules, that the official discussion,

without further action, does not constitute an adverse action. Therefore,

the complainant has failed to satisfy the third prong of the above test

thus failing to establish a prima facie case of retaliation. Accordingly,

the Commission AFFIRMS the previous decision finding that the complainant

failed to establish a prima facie case of retaliation.

HOSTILE WORK ENVIRONMENT

In reviewing complainant's claim of a hostile work environment, the

Commission will apply a substantial evidence standard in reviewing the

administrative judges factual findings pursuant to 64 Fed. Reg. 37,644,

37,657 (1999) (to be codified at and hereinafter referred to as 29

C.F.R. � 1614.109). In this case, the Administrative judge has found

that both complainant and her witness did not provide credible testimony.

To support this ruling, the Administrative Judge cited that since

complainant incorrectly testified as to what grade Ms. Griff was hired at

and to the amount of training her coworkers received he did not find her

testimony with respect to the claim of hostile work environment to be

credible. The AJ further found that since complainant's witness no longer

worked for the agency, he thus had no stake in the matter, and therefore

his testimony had to be given careful consideration. The record reflects

that his testimony concerning the issues of a hostile work environment were

not considered or given credence.

To determining whether or not a complainant was subjected to a hostile or

abusive work environment, the trier of fact must consider the totality of

the instances of harassment togther rather than piecemeal to determine if

the acts considered together, are sever and pervasive enough to alter

the conditions of the workplace. See Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993)

Consistent with the Commission's policy and practice of determining

whether a hostile or abusive work environment existed, the Commission

has repeatedly found that claims of a few isolated incidents of alleged

harassment usually are not sufficient to state a harassment claim.

See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030

(July 12, 1996); Banks v. Health and Human Services, EEOC Request

No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly

found that remarks or comments unaccompanied by a concrete agency action

usually are not a direct and personal deprivation sufficient to render

an individual aggrieved for the purposes of Title VII. See Backo

v. United States Postal Service, EEOC Request No. 05960227 (June 10,

1996); Henry v. United States Postal Service, EEOC Request No.05940695

(February 9, 1995).

In determining whether an objectively hostile or abusive work environment

existed, the trier of fact should consider whether a reasonable

person in the complainant's circumstances would have found the alleged

behavior to be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a complainant may

assert a Title VII cause of action if the discriminatory conduct was

so severe or pervasive that it created a work environment abusive to

employees because of their race, gender, religion, or national origin.

Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,

1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))

req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,

the trier of fact must consider all of the circumstances, including the

following: 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, 510 U.S. at 23.

In the present case, the Administrative Judge reviewed several instances

of alleged harassment in determining if a hostile work environment

existed. They were as follows: utterance of racial epithets; striking

of complainant's cubical; tampering with her computer; a comment about

complainant's lunch; a comment about her mental well being; not being

hired at a higher level; and not receiving the same amount of training as

her coworkers. Within his decision, the AJ made the factual finding that

the testimony provided for concerning the claims of racial epithets,

intentional and frequent striking of complainant's cubical, not being

hired at a higher level and training was not credible. Pursuant to 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at and hereinafter

referred to as 29 C.F.R. � 1614.405(a)), all post-hearing factual findings

by an Administrative Judge will be upheld if supported by substantial

evidence in the record. Substantial evidence is defined as " such

relevant evidence as a reasonable mind might accept as adequate to support

a conclusion". Universal Camera Corp. v. National Labor Relations Board,

340 U.S. 474, 477 (1951) (citation omitted). A finding that

discriminatory intent did or did not exist is a factual finding. See

Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). Here, the record

does not present evidence which would demonstrate that the factual findings

of the Administrative Judge were erroneous.

Notwithstanding the above, the AJ erred in performing the hostile

work environment analysis with respect to the remaining claims.

In his decision, he looked at each claim in a piecemeal fashion and

determined that alone, it was not severe and pervasive enough to alter

the conditions of the work place. Properly, he should have reviewed

the claims collectively and determined if together, they were severe

and pervasive enough to alter the conditions of the work place. The

Commission finds that even when the remaining claims are viewed together,

they do not rise to a level that is severe and pervasive enough to alter

the conditions of the workplace. Therefore, the Commission AFFIRMS the

Administrative Judge's and the previous decision finding that no hostile

work environment existed.

CONCLUSION

After a review of complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds complainant's

request does not meet the criteria of 29 C.F.R. � 1614.405(b), and it is

the decision of the Commission to deny complainant's request. However,

as discussed herein, the Commission exercises its discretion to reconsider

the previous decision on its own motion pursuant to 29 C.F.R. � 1614.405.

The previous decision affirming the agency's final decision is AFFIRMED

and complainant's petition is denied. The decision of the Commission

in EEOC Appeal No. 01980114 (October 5, 1999) remains the Commission's

final decision. There is no further right of administrative appeal from

a decision of the Commission on a request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

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 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.

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:

March 16, 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

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.