Vicki O. Best, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 30, 2001
01993180 (E.E.O.C. Oct. 30, 2001)

01993180

10-30-2001

Vicki O. Best, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Vicki O. Best v. Department of the Air Force

01993180

10-30-01

.

Vicki O. Best,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01993180

Agency No. AROOO990231

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

concerning her formal complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the final agency

decision is AFFIRMED.

ISSUE PRESENTED

The issue presented herein is whether complainant has proven by

preponderant evidence that she was unlawfully harassed on the basis of

sex (female).<1>

BACKGROUND

Information in the evidentiary record indicates that complainant was

employed by the agency as a Data Technician, GS-06, at the time of the

alleged discriminatory events. Complainant had been in this position

for approximately ten years. In July 1994, the agency underwent a

reorganization. As a result, complainant's position was transferred from

one area of the 45th Civil Engineering Squadron to another area in the

same squadron. After the transfer, complainant was under the supervision

of the Chief of Program Development (hereinafter referred to as the

responsible management official, or the supervisor). In the new area,

complainant retained some of her old duties and inherited some new ones.

As evidence to support her claim of harassment, complainant pointed

to six incidents. Those incidents are as follows: (1) from July 1994

to January 1998, the agency denied her request to update or re-write

her position description to reflect her actual duties after the agency

reorganized; (2) for the rating periods ending July 1995, July 1996, and

April 1997, her performance plan was not discussed with her nor signed

by her supervisor; (3) in April 1996, she was not consulted about the

office renovation plans and on May 31, 1996, she was assigned to a work

area with little natural lighting and poor ventilation, (4) on August

13, 1996, her performance appraisal reflected an �eight� in the area of

self-sufficiency without documentation or justification; (5) on January

9, 1998, she was transferred to another part of the agency but was not

relieved of her equipment custodian duties until January 30, 1998;<2>

and (6) she was not offered and did not receive a farewell luncheon

prior to her January 1998 transfer.

Believing she was the victim of discrimination, complainant contacted an

EEO counselor on January 21, 1998. When the matter failed to be resolved

at the counseling stage, complainant filed a formal complaint, which

was accepted by the agency for investigation. At the conclusion of the

investigation, complainant requested an immediate final agency decision.

The agency's final decision ruled that it had not discriminated against

as alleged. It is from that decision that complainant appeals.

ANALYSIS AND FINDINGS

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcester Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant must establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

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

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

714-717 (1983). Here, we find that the agency has stated legitimate,

nondiscriminatory reasons for its actions. Specifically, the agency

stated that complainant's position description was re-written in April

1995 to reflect her transfer from CECC to CECB. The agency further stated

that during the relevant time period, no substantive changes were made

to any of the position descriptions.

Regarding complainant's performance plans, the agency stated that

complainant's supervisor, because of downsizing within the agency, was

tasked with performing assignments that had previously been performed by

two people, and as a result, the supervisor was not able to perform some

of his duties in a timely fashion. The agency noted that the supervisor

was not always able to discuss and sign the performance plan of other

employees as well.

Regarding the office renovations and complainant's workstation, the agency

stated that only the supervisor and the Section Chief were consulted about

the office renovation plan. The agency further stated the original plan

called for each workstation to be constructed with five-foot partitions,

but due to a shortage of space, seven-foot partitions were used instead.

The higher partitions changed the airflow and affected the lighting in

the supervisor's and complainant's workstations. These problems were

corrected to the extent possible.

Regarding complainant's performance appraisal, the agency stated

complainant was rated an �eight� in the category of self-sufficiency

because that is the area in which she needed improvement. The agency

noted that complainant's overall performance rating was �superior,�

and that there were male employees who received ratings lower than

complainant.

Regarding not relieving complainant of her equipment custodian duties

immediately after her transfer of January 1998, the agency stated that

the delay was caused by the relatively short time between the effective

date of the transfer and the date on which complainant's supervisor was

notified of the transfer. The agency further stated that the number of

employees on leave and temporary duty assignment, and mistakes on the

appointment letter regarding complainant's transfer also contributed to

the delay.

Finally, regarding the allegation that complainant was not offered and

did not receive a farewell luncheon after her transfer, the agency

stated that there was little time to plan a such a luncheon because

two days after complainant received her transfer notification, she went

on leave and did not return until the effective date of her transfer.

The agency acknowledged that complainant's supervisor had hosted parties

for other employees who had retired or transferred to another part

of the agency. The supervisor distinguished between retirement and

transfer to another part of the agency from complainant's situation,

that is, an internal transfer which did not require her to relocate to

another agency installation.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory events, complainant now bears the burden

of establishing that the agency's stated reason is merely a pretext for

discrimination. Shapiro v. Social Security Administration, EEOC Request

No. 05960403 (December 6, 1996). Complainant can do this by showing

that the agency was motivated by a discriminatory reason. Id. (citing

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,

complainant has failed to meet that burden. Complainant offered no

evidence which suggests that the agency's actions were pretext to mask

sex-based discrimination. For that reason, her disparate treatment

claim must fail.

Harassment

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

must be determined by looking at all the circumstances, including 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 v. Forklift Systems, 510 U.S. 17 (1993).

Complainant alleges that she was harassed. To establish a claim case

of harassment, a complainant must show that: (1) s/he is a member of a

statutorily protected class; (2)s/he was subjected to harassment in the

form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the statutorily

protected class; and (4) the harassment affected a term or condition of

employment and/or had the purpose or effect of unreasonably interfering

with the work environment and/or creating an intimidating, hostile, or

offensive work environment. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. In this

case, we find that complainant has failed to establish a

claim of harassment because she did not present evidence which suggests

that the events about which she complained were based upon sex.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response thereto, and arguments and

evidence not specifically addressed in this decision, we hereby AFFIRM

the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

___10-30-01_______________

Date

1In her statement on appeal, complainant stated that she did not allege

that she was subjected to a hostile working environment. But after

thoroughly examining her claim and the evidence she provided in support

of that claim, it appears to the Commission that complainant is alleging

harassment on the part of the agency that resulted in tangible employment

actions and a hostile work environment. We note that the agency, in its

final agency decision, stated that this is a disparate treatment claim,

not a sexual harassment claim. While this is not a sexual harassment

claim; it appears to be a sex-based harassment claim, that is, a claim

which alleges non-sexual harassment based on gender or sex. Due to the

confusion surrounding the type of claim in this case, the Commission will

conduct a disparate treatment analysis as well as an harassment analysis.

2The actual transfer is not an issue in this case.