01977065
08-19-1999
Beverly L. Kunitomo, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Beverly L. Kunitomo, )
Appellant, )
) Appeal No. 01977065
v. ) Agency No. 950217
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges that she was discriminated against on the bases of race
(Japanese), sex (female) and in reprisal for prior EEO activity when:
(1) she was placed on annual leave when she took her lunch period during
the thirty minutes comprising the end of her tour of duty on Saturday,
April 16, 1994; and (2) she received a lower performance rating for the
year ending September 30, 1994. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the Commission finds
that appellant was discriminated against on the basis of sex. Therefore,
the agency's decision is AFFIRMED in part, REVERSED in part, and REMANDED.
The record reveals that during the relevant time, appellant was employed
as a GS-09 Plant Protection and Quarantine Officer (PPQ) assigned
to Kailua-Kona, Hawaii. Believing she was discriminated against as
referenced above, appellant sought EEO counseling and subsequently filed
a complaint on February 17, 1995. At the conclusion of the investigation,
appellant requested that the agency issue a final decision.
The FAD concluded that appellant failed to establish a prima facie case
of race or sex discrimination on either issue because she presented no
evidence that similarly situated individuals not in her protected classes
were treated more favorably under similar circumstances. The FAD also
found, without explanation, that appellant failed to establish a prima
facie case of retaliation in regard to the leave issue. However,
the FAD concluded that appellant established a prima facie case of
retaliation regarding her performance appraisal which was lowered for the
year following her appointment to an EEO Advisory Committee. The FAD
concluded that the agency articulated a legitimate, nondiscriminatory
explanation for the performance rating; and that appellant failed to
prove the explanation was a pretext for retaliation.
It is from this decision appellant now appeals. On appeal, appellant
contends that the Officer In Charge (OIC), who rated her performance,
retaliated against her after he received counseling about his conduct in
the workplace and a Letter of Caution from the State Health Plant Director
(SHPD) as a result of complaints concerning discriminatory comments
directed at female employees. Appellant also contends that there is
evidence that male PPQ officers were allowed to take their lunch break
one half hour prior to the end of their tour of duty with the OIC's full
knowledge and approval. The agency requests that we affirm its FAD.
Allegation #1
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973); Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248
(1981) and 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), the Commission finds
that, in regard to being charged annual leave for taking her lunch break
at the end of her tour of duty, appellant has established a prima facie
case of race and sex discrimination.<1> In reaching this conclusion,
we note that at least one White, male employee, then a GS-11 PPQ who was
supervised by the same OIC, testified that he regularly deviated from his
scheduled lunch break and once took his lunch break at the end of his
tour without having being charged leave. Testimony from two employees
corroborates appellant's allegation that a former male GS-09 PPQ officer
regularly took lunch at the end of his tour without ever being charged
leave. [Report of Investigation (ROI) at 12, 15]. Although this former
employee denies such conduct, we accord little weight to his testimony
because he described appellant as an affirmative action employee who did
little work and was unworthy of her job. [ROI at 21-22]. There is not
a shred of evidence in the file to support a finding that appellant was
not a hard-working employee whose abilities and performance were valued by
the agency. To the contrary, the FAD stated that appellant's �dedication
to the mission of the agency must be recognized as commendable.� [FAD
at 4]. Accordingly, we find that appellant has presented sufficient
evidence of disparate treatment to warrant an inference of discrimination.
Having established a prima facie case, the burden shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its action. The OIC
stated he originally charged appellant AWOL for the thirty minutes at
the end of her shift because she left without having requested leave.<2>
Appellant indicated on the Plan of the Day (POD) that �No Lunch Taken -
Left at 1400.� The OIC stated that the policy, in accordance with the
Supervisor's Desk Guide, was that lunch was not to be taken in the first
or last two hours of a shift. However, there is no evidence that any
of the employees were specifically acquainted with this policy before
the incident at issue occurred. Several employees testified that,
prior to this incident, lunch breaks were not recorded and that they
regularly deviated from their lunch schedules because lunch was only
taken when there was sufficient staff to cover their absence. Moreover,
the OIC did not rebut the contention made by the male GS-11 employee who
admitted to having taken lunch once at the end of his shift without being
charged leave. Accordingly, we find that appellant's failure to adhere
to the policy was not the real reason she was charged annual leave for
thirty minutes on April 16, 1994.
We do not find that appellant has proven by a preponderance of the
evidence that racial discrimination was the real reason she was charged
with annual leave since there is scant evidence in the record that the
OIC was motivated by discriminatory animus towards appellant's race.
However, the record establishes that the OIC indulged in remarks
disparaging women in the workplace. Although the OIC testified that he
never made such comments, both male and female employees asserted that
he did. [ROI at 16-18, 28, 31, 33, 47]. The nature of these remarks
concerned: the agency being forced to hire women who then became pregnant;
women having �female problems� when they requested time off to care for
children; and wishing that he had an all male workforce. Furthermore,
both male and female employees testified that the OIC treated female
employees more strictly than male employees. [ROI at 13, 26, 28, 33].
For example, the time and attendance, including breaks, of the female
employees were closely monitored while those of the male employees
were not. Other facility employees joked about spotting the OIC spying
on the females while they worked. Moreover, the evidence establishes
that the OIC avoided confronting male employees on issues of tardiness,
unduly long breaks and performance problems such as dozing on the job
and disappearing for long intervals from work stations. Accordingly, we
find that appellant has proven by a preponderance of the evidence that,
more likely than not, her sex was the reason she was charged with annual
leave for thirty minutes at the end of shift when she had not taken a
lunch break on September 16, 1994.
Allegation #2
Based on the standards set forth in McDonnell Douglas; Burdine and
Hochstadt, supra, we find that appellant failed to establish a prima
facie case of discrimination on any basis in regard to the her lowered
performance appraisal. In reaching this conclusion, we note that
appellant failed to establish entitlement to a higher rating.
Initially, we note that for the previous appraisal rating ending in
September 1993, appellant's overall performance was rated �Superior.�
For the rating period ending in September 1994,, appellant's overall
performance was rated �Fully Successful.� We note that on the 1994
performance appraisal, critical Element #7 (Equal Opportunity and Civil
Rights) and non-critical Element #4 (Conducts Administrative Functions)
were the two elements on which appellant received a lower performance
rating (�Meets Fully Successful�) than the previous rating period
(�Exceeds Fully Successful�).
Regarding Element #7, the OIC stated that appellant had received a
�Exceeds Fully Successful� rating in Element #7 during the previous year
only because at the very end of the rating period, she had expressed
interest in joining the Advisory Committee and becoming a collateral
duty EEO counselor.<3> The OIC testified that during the rating period
at issue, he did not see any performance which warranted a rating beyond
�Meets Fully Successful.� [ROI at 34-39]. Although the OIC's testimony
concerning what kind of work was expected under Element #7 was vague,
appellant did not provide evidence that she displayed the kind of
enthusiasm or initiative which prompted the higher rating in the previous
year or that her performance in fact warranted a higher rating than the
�Meets Fully Successful� which she received.
Regarding Element #4, the OIC testified that appellant, who had shown
concerted effort in the previous rating period to make improvement,
became complacent during the 1994 rating period administrative
functions. The OIC stated that he noticed no effort on appellant's
part to consistently maintain the POD book or re-order supplies.
The OIC stated that since her performance never fell below the �Meets
Fully Successful� rating, he did not counsel her. Appellant contends
that her performance remained consistent from year to year. However,
she has presented no objective evidence which would warrant a finding
that the OIC's assessment undervalued her contributions or incorrectly
characterized her performance.
The Commission finds that appellant failed to establish entitlement to
a higher performance rating than the one she received. Accordingly,
we do not find that appellant was adversely affected by the agency's
action regarding allegation #2, and thus she failed to establish a prima
facie case of discrimination.
Therefore, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM in part and REVERSE in part the agency's final
decision and REMAND this complaint for further investigation into
appellant's entitlement to her alleged compensatory damages. In order
to remedy appellant for its discriminatory actions, the agency shall
comply with the following Order below.
ORDER
The agency is ORDERED to take the following remedial action:
(1) Within (30) calendar days of the date this decision becomes final,
the agency is directed to credit appellant with thirty (30) minutes of
annual leave;
(2) The agency shall conduct a supplemental investigation on the issue
of appellant's entitlement to compensatory damages and shall afford
appellant an opportunity to establish a causal relationship between the
incident of discrimination and any pecuniary or non-pecuniary losses.
See West v. Gibson, 119 S.Ct. 1906 (1999); Cobey Turner v. Department of
the Interior, EEOC Appeal Nos. 01956390 and 01960158 (April 27, 1998).
The appellant shall cooperate in the agency's efforts to compute
the amount of compensatory damages and shall provide all relevant
information requested by the agency. The agency shall issue a final
decision on the issue of compensatory damages. 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within ninety (90) calendar days of the date this decision
becomes final. A copy of the final decision must be submitted to the
Compliance Officer, as referenced below;
(3) The agency shall post copies of the attached notice at the facility
where this discrimination occurred in Kailua-Kona, Hawaii. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period;
(4) The agency shall provide training in the obligations and duties
imposed by Title VII to the evaluating and reviewing officials responsible
for the instant action; and in the event that the OIC remains an employee
of the agency, the agency shall provide a minimum of sixteen (16) hours
of EEO sensitivity training with respect to Title VII; and
(5) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency -
not to the Equal Employment Opportunity Commission, Office of Federal
Operations-within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant has the right to
file a civil action on the underlying complaint in accordance with the
paragraph below entitled "Right to File A Civil Action." 29 C.F.R. ��
1614.408 and 1614.409. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. � 2000e-16(c) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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 (Z1092)
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:
August 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The Commission does not find
sufficient evidence to support a prima facie case of retaliation in
regard to the leave issue. In October 1993, appellant was selected
for collateral duty EEO work and was designated the Asian Pacific
Islander Program Manager. However, appellant has not presented
evidence of a causal connection between her EEO involvement and
the OIC's decision to charge her leave while she took her lunch
break at the end of her shift on April 16, 1994.
2 The AWOL charge was changed to Annual Leave because the computer system
would not accept the AWOL charge due to appellant's accumulated overtime.
3 Non-critical Element #8 was added to the 1994 performance appraisal
to assess appellant's performance on the Advisory Committee and as a
collateral duty counselor. As an explanation for the rating in Element
#8, the OIC testified that appellant did not communicate effectively about
her efforts and involvement; and showed no outward signs of ambitious
effort during the rating year. The OIC also found that appellant lacked
motivation, creativity and direction in regard to her Advisory Committee
responsibilities.