Thelma W. Morgan, Complainant,v.William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionApr 19, 2000
01986500 (E.E.O.C. Apr. 19, 2000)

01986500

04-19-2000

Thelma W. Morgan, Complainant, v. William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.


Thelma W. Morgan v. Department of Defense

01986500

April 19, 2000

Thelma W. Morgan, )

Complainant, )

) Appeal No. 01986500

v. ) Agency No. UA-97-001

)

William S. Cohen, )

Secretary, )

Department of Defense )

(Defense Logistics Agency), )

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),

race (Black), and age (DOB: May 26, 1946) when: (1) she was issued a

letter of warning on September 27, 1996; (2) on September 30, 1996,

she was denied an opportunity to work on a video; (3) her position was

not upgraded to reflect that she was performing duties at the GS-12/13

level; (4) she was suspended from November 30 to December 1, 1996; and

(5) on September 30 and October 1, 1996, she was yelled at regarding a

work assignment. The complainant also alleges that the aforementioned

actions, when considered together, constitute discriminatory harassment.

BACKGROUND

The complainant filed an EEO complainant in February 1997 in which

she raised what have been identified above as Issues 1 through 5.

In its acceptance letter, the agency informed the complainant that

it was accepting Issues 1 through 3 for investigation but did not

address Issues 4 and 5. Following an investigation of Issues 1

through 3, the complainant did not exercise her right to request an

administrative hearing. The agency thereafter issued a final decision

(FAD) in which it initially found that, because Issues 4 and 5 had been

raised by the complainant and never explicitly dismissed, they should

be addressed. In this regard, the FAD found that the investigative

file contained sufficient evidence to address both issues.<0> The FAD

then addressed the merits of the complainant's complaint and found she

had not established discrimination with regard to Issues 1 through 5.

It is from this decision that the complainant now appeals.

Issues 1, 4, and 5

During the period in question, the complainant was employed as a Program

Analyst, GS-343-09, in the Programs Management Branch (the Branch) at

the agency's Defense Technical Information Center (DTIC). Issues 1, 4,

and 5 involve a series of events that began during a Branch meeting held

on September 25, 1996. During the meeting, the complainant was asked by

the Branch's Chief (Responsible Official 1, RO 1) to describe the current

process for handling Independent Research and Development Database (IR&D)

submissions. The complainant refused to provide the information, noting

that she had explained the process to RO 1 on a prior occasion and had

no intention of describing it again. When the complainant was queried

about her refusal, she replied that "she had her reasons and [they'd]

know what they were soon enough." At that point, the complainant left

the meeting. The complainant was subsequently issued a letter of warning

(LOW) dated September 27, 1996, based on her conduct at the meeting.

The LOW states that the complainant's behavior was deemed to constitute

insubordination and was detrimental to the operations of the Branch.

On September 30, 1996, RO 1 asked the complainant about an assignment that

was due on that date. The complainant initially refused to answer, and,

when pressed, finally stated, "I have no comment." Although RO 1 gave

the complainant an extra day to complete the assignment, when he inquired

about it the following day she replied, "No comment," and then told RO

1 that the completed assignment was on his desk. When RO 1 discovered

that the assignment was not on his desk, he held a meeting with the

complainant and an upper management official to discuss the situation.

When that official informed the complainant that the IR&D project was

a team effort and that she needed to be cooperative, she replied, "No

I don't." The complainant was subsequently issued a notice of two-day

suspension on October 7, 1996, which, in addition to citing the LOW,

cited the events of September 30 and October 1. The notice states that

the complainant's behavior had been detrimental to the Branch and that,

as a result of her refusal to follow orders and complete assignments, her

duties had to be delegated to her co-workers. The record reveals that

the complainant served her suspension from October 30 to November 1, 1996.

Issue 2

On or about September 30, 1996, one of the complainant's co-workers

(Employee A, White, male, under 40) was chosen to work on a video

pertaining to IR&D. In support of the decision to choose Employee A,

DTIC's Team Leader (RO 2) stated that he was the best candidate for the

process insofar as he was "familiar with the imbedding process and was

also familiar with some IR&D and other CD-ROM constraints." Conversely,

RO 2 noted that no one on the IR&D team, including the complainant,

was familiar with both the imbedding and CD-ROM constraints.

Issue 3

The final issue raised by the complainant is that RO 1 refused to upgrade

her position to the GS-12/13 level. In arguing that her position should

have been upgraded, the complainant states that she had been directed

to perform duties commensurate with those levels for an extended period.

In response, RO 1 stated that the duties he assigned the complainant were

consistent with the GS-7 and 9 levels. He also noted that, although the

complainant had been afforded the opportunity to perform at a higher grade

level by presenting a briefing to the IR&D Multi-Association Task Group,

she had refused.

ANALYSIS AND FINDINGS

Issues 1, 4, and 5

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).

The complainant can establish a prima facie case of discrimination

based on race, sex, and age by showing that: (1) she is a member of the

protected groups; and (2) she was treated differently than a similarly

situated nonmember of her protected groups and/or an individual

substantially younger than she. See Potter v. Goodwill Industries of

Cleveland, 518 F.2d 864, 865 (6th Cir. 1975). In this case, we find that

the complainant has not established that she was treated differently

than either a similarly situated nonmember of her protected groups or

an individual who is substantially younger than she.<0> Accordingly,

we find that the complainant has not established a prima facie case with

regard to Issues 1, 4, and 5.

Assuming, arguendo, that the complainant could establish a prima facie

case, we find the agency has met its burden of articulating a legitimate,

nondiscriminatory reason for the challenged actions.

See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Specifically, RO 1 testified that the LOW and suspension were issued based

on the complainant's insubordinate conduct in September and October 1996.

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, in support of her position, contends that she

was not uncooperative, there is ample evidence in the record to conclude

that she was repeatedly uncooperative as well as insubordinate. For that

reason, and because the complainant has offered nothing which indicates

that the challenged actions were related to her race, sex, or age, we

find she has not established discrimination with regard to these issues.

Issue 2

Insofar as the complainant was not chosen for the video project in

favor of Employee A, a substantially younger White male, we find she has

established a prima facie case based on race, sex, and age. We also find,

however, that the agency has met its burden of articulating a legitimate,

nondiscriminatory reason for selecting Employee A. Specifically, RO 1

testified that Employee A was familiar with the imbedding process and with

some IR&D and CD-ROM constraints. We find the complainant has not

established that this reason is pretextual. In particular, she has not

demonstrated that she possessed the experience in question and/or that this

experience was not relevant to working on the video. Accordingly, we find

the complainant has not established discrimination with regard to this issue.

Issue 3

Assuming, arguendo, that the complainant could establish a prima facie

case, the Commission finds that the agency articulated a legitimate,

nondiscriminatory reason for the refusal to upgrade her, i.e., that the

duties she was performing were not commensurate with a higher grade level.

Aside from merely asserting that her duties were commensurate with a

higher level, the complainant has offered nothing which establishes that

this reason is pretextual. Accordingly, we find she has not established

discrimination with regard to this issue.

Harassment

It is well-settled that harassment based on an individual's race,

sex, and age 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; (2) she was subjected to unwelcome

conduct related to her membership in those classes; (3) the harassment

complained of was based on race, sex, and age; (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>

Although the complainant is able to satisfy element 1, we find that she

has not satisfied elements 2 through 4. Initially, we find that the

complainant has not demonstrated that there is a connection between

the actions she challenges and her race, sex, or age. Furthermore,

we find that the actions in question encompassed in Issues 1 through 5,

when considered together, 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.

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 (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:

April 19, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 The Commission agrees with the agency and finds sufficient

evidence in the record to address the merits of Issues 4 and 5.

03 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).

04 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.