01993180
10-30-2001
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.