01a46012
03-07-2005
Diane L. Beesley, Complainant, v. Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.
Diane L. Beesley v. Department of the Air Force
01A46012
March 7, 2005
.
Diane L. Beesley,
Complainant,
v.
Peter B. Teets,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A46012
Agency No. 8I1M03007
Hearing No. 150-2004-00157X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Traffic Management
Specialist, GS-2130-09, at the agency's 96th Transportation Logistics
Readiness Squadron/Traffic Management Flight (LRS/LGRT), Elgin Air Force
Base (AFB), Florida<1>.
Complainant sought EEO counseling and subsequently filed a formal
complaint on March 3, 2003. Therein, complainant claimed that she was
discriminated against on the bases of sex (female), age (D.O.B. 12/10/52),
and in reprisal for prior EEO activity (for reporting a claim of sexual
harassment during March 2000 and/or for contacting an EEO Counselor on
December 4, 2002) when:
(1) on January 24, 2003, complainant received an AF Form 860B,
[Civilian Progress Review Sheet] which rated her for work not required
by her work plan and which contained disparaging comments;
(2) she was discriminated against relating to her work assignments on
November 5, 2002; and
(3) since March 2000, she was subjected to a hostile work environment
when she first reported a previous claim of sexual harassment.
Complainant based her claim of harassment on fourteen separate incidents.
At the conclusion of the investigation, complainant was informed of
the right to request a hearing before an EEOC Administrative Judge (AJ)
or alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing before an AJ. By letter to the AJ dated May
19, 2004, complainant withdrew her hearing request and requested that the
agency issue a final decision. By Order dated May 20, 2004, the AJ issued
an Order of Dismissal dismissing complainant's request for a hearing
without prejudice and ordered the agency to issue a final decision.
In its July 26, 2004 final decision, the agency construed the above
referenced three claims as one overall claim of hostile work environment
based on sex, age, and in reprisal for prior protected activity.
The agency indicated that the specific incidents that comprised the
claim of hostile work environment included the following incidents:
a. management's failure to properly code complainant's budget experience
since 1998;
b. the alleged withholding of tools and equipment from complainant's
use on the job since March 2000;
c. complainant's assignment during May 2001, to perform additional
computer duties;
d. complainant's assignment during June 2001, to work with the passenger
travel software;
e. complainant's assignment during January 2002, to train military
personnel on the Cargo Movement Operating System (CMOS);
f. complainant's assignment during April 2002, to show a General Officer
the CMOS software;
g. on August 22, 2002, [a named System Administrator] took the printers
off line and caused an altercation between a co-worker and complainant;
h. complainant was offered a physical evaluation upon her return to
duty from sick leave on September 30, 2002;
i. on October 1, 2002, [Complainant's named first-level Supervisor]
allegedly made a sarcastic remark to her;
j. on November 5, 2002, complainant's workgroup manager duties were
deleted;
k. complainant was charged Absence Without Official Leave (AWOL) for
her absence from November 25 to 29, 2002;
l. on December 3, 2002, complainant's e-mail was forwarded to her
supervisor;
m. complainant was informed that her position would be abolished on
December 3, 2002;
n. during December 2002, complainant was reassigned to a new immediate
supervisor;
o. on January 24, 2004, complainant received her AF Form 860B, which
rated for work not required by her work plan, contained disparaging
comments and received a new work plan, AF Form 860; and
p. complainant's AF Form 860A for rating period, April 1, 2002 through
March 31, 2003 was lowered.
Claims (o) and (p)
The agency first addressed claims (o) and (p) separately, and found that
management articulated legitimate, non-discriminatory reasons for its
actions and that complainant did not establish that these reasons were
a pretext for discrimination.
Specifically, the agency noted that in her declaration, complainant's
immediate supervisor (S1) stated she wrote comments which she did not
perceive as disparaging, on complainant's AF Form 860B because complainant
had not been to work in three months, and that S1 had received a sick
slip for only one week. S1 stated that she used the guidance from
a Human Resources Specialist, an agency official, and her immediate
supervisor in her determination rating complainant's performance; and
that they advised S1 that it would not be fair to other employees to
give complainant a high rating when she was not at work. S1 stated
that she did not feel that complainant's performance rating was bad,
considering that she had not been at the worksite, and that she had not
received an unsatisfactory rating.
The agency also noted that complainant's second-level supervisor (S2)
stated that as a reviewer, she signed complainant's performance plan.
S2 further stated that she did not recall any disparaging remarks in
complainant's performance plan; and that complainant "was not at the
worksite performing her job because she had been on some type of leave
from September through December 2002 and that she had difficulty with
working relationships with other employees." Moreover, S2 stated
that she was in agreement with S1 concerning complainant's performance,
and knew that complainant was not in a duty status for "most the quarter."
The agency noted in her declaration, the third-level supervisor (S3)
stated that complainant's work plan "was being revised to accurately
reflect her duties as contained in her position description." The S3
further stated that complainant was doing budget work, and should have
been performing CMOS duties in accordance with her position description.
Moreover, the agency then determined that complainant failed to provide
any evidence that management's reasons were a pretext for discrimination.
Regarding claim (p), the agency found that the record does not contain
specific information showing how S3 rated other employees under her
supervision. The agency noted that complainant's AF Form 860A contained
an overall �acceptable� rating with eight appraisal factor ratings of
�8" and one appraisal factor rating of �9.� The agency concluded that
appraisal factor ratings such as complainant's ratings are generally
considered not to be adverse ratings because the rating of �8" is the
second highest factor rating; and the rating of �9" is the highest factor
rating an employee may receive.
Harassment claim
Furthermore, the agency concluded that complainant failed to prove that
she was subjected to harassment sufficiently severe or pervasive so as
to render her work environment hostile. Specifically, the agency found
that the majority of complainant's claims appear to be actions of S1, S2,
and S3 attempting to accomplish the actions required of their positions
of responsibility. The agency also found that when dealing with agency
management, complainant was at times uncooperative; and misunderstood and
challenged management's attempts to assist her and to perform necessary
supervisory duties.
Regarding claim (a), the agency noted that S1 stated that she placed
budget work on complainant's work plan so that complainant could get
credit for such work. S1 further stated that if complainant wished to
have the budget plan placed in her personnel records, that she would
need to complete a 612 form and "then I would sign this 612 form
indicating [Complainant] had performed this work." S1 stated that
when she was complainant' s supervisor, complainant "did not provide
me with a completed 612 form showing the budget work or with any other
completed form to document her budget work experience so that it may be
inputted into the computer system." Furthermore, S1 stated that she,
complainant' s second-level Supervisor and S3 advised complainant that
she needed to complete the appropriate form to have her budget work
experience coded by Civilian Personnel Office. The agency further noted
in her declaration, S3 stated that prior to her departure in 2003,
she provided a copy of complainant' s budget experience paperwork to
[Human Resources Analyst]. S3 further stated that [Human Resources
Analyst] assured me that complainant's budget experience paperwork
"would be inputted into the system."
Regarding claim (b), the agency noted that S1 stated that she bought
tools and equipment for complainant to do her job. S1 further stated
that a System Administrator did not withhold tools and equipment from
complainant because they each had their own tools/equipment to use.
S1 stated that the System Administrator is the building custodian and
is responsible for equipment, and locked up old computers that were not
being used.
With respect to complainant's claim that a System Administrator would
not provide her a laptop, the agency noted that S3 stated that she was
informed that the System Administrator told complainant that if she
signed up for a laptop computer, he would let her have it.
Regarding claim (c), the agency noted that S1 stated that in March 2001,
complainant requested additional duties, and that after such duties were
assigned, complainant reconsidered, causing agency management to remove
the duties.
Regarding claim (d), S1 stated that she did not give complainant the
additional duty of working with the passenger travel software.
Regarding claim (e), the agency noted in her declaration, complainant
claimed that S3 instructed her to train about five military personnel
in CMOS for deployments and that S1 �tasked me to perform this function
because [a named System Administrator] did not want to do it.� The
agency noted in her declaration, S3 stated that the CMOS training was
part of complainant's position description and that she had conducted
CMOS training for air terminal operators and CMOS users. Further,
the agency noted in his declaration, the System Administrator stated he
offered to assist complainant �in getting the computers ready for the
training to the five military personnel,� but she declined his offer.
Furthermore, the System Administrator stated that on February 7, 2002, he
was not available for the CMOS training because he had a Barcode training.
Regarding claim (f), S1 stated that she asked complainant to put
together a briefing for a General Officer]. The S1 further stated
that she informed complainant that it would be "an informal and not
in-depth briefing," and that she would be fine. S1 stated that it was
a �bonus� for the General Officer to see what complainant could do.
Furthermore, S1 stated that complainant was "excited about this task;"
and that she "did well in this 5 or 10 minute presentation to [the named
General Officer]."
Regarding claim (g), S1 stated that following her investigation, she
learned that the System Administrator did not cause the altercation
between complainant and a co-worker. S1 further stated that she received
letters from other employees "that indicated [the named Co-worker] did not
want to talk with [complainant] and stated that he was tired of hearing
[complainant's] problems and that he was busy."
Regarding claim (h), the agency noted in her declaration, S2 stated
that on September 30, 2002, she issued complainant a memorandum of
Offer of Medical Examination/Evaluation because she was concerned with
complainant's state of health. S2 further stated that she was doing
what Employee Relations recommended, and that a named Employee Relations
employee drafted the memorandum. S2 further stated that she issued this
memorandum to complainant "because she was having panic attacks in the
office and employees were concerned." S2 stated that the memorandum was
not a Fitness for Duty memorandum.
Regarding claim (i), the agency noted that complainant claimed
that S1 inquired regarding her signing the letter of medical
examination/evaluation and then made a sarcastic remark to her.
The agency noted in her declaration, S1 denied making a sarcastic remark
as alleged by complainant.
Regarding claim (j), S1 stated that she did not take away workgroup
manager duties from complainant. S1 further stated that once a
merger went through, complainant no longer worked for Transportation
but worked for Management Systems. Furthermore, S1 stated that all
of the computer employees, including complainant, started working for
Management Systems. The agency noted that S3 stated that Workgroup
Manager duties were not part of complainant's position description,
and that it was an additional duty assigned to her. S3 further stated
when the two squadrons merged, the Systems Management Supervisor took
away Workgroup Manager from employees, including complainant, because
she was trying to make the organization "more efficient and streamlined."
Regarding claim (k), the agency noted in her declaration, S1 stated
that she placed complainant on AWOL "because she walked off the job."
S1 also stated that complainant was placed on AWOL for three days, and
"then it was subsequently changed to either annual or sick leave."
Regarding claim (l), the agency noted in her declaration, S3 stated that
she had no knowledge of the Supervisor, Freight Rate Specialist advising
complainant that S3 instructed him to forward his e-mails received from
complainant to S3. Moreover, S3 denied instructing the Supervisor,
Freight Rate Specialist to forward his e-mails received from complainant
to her.
Regarding claim (m), the agency noted in her declaration, S1 stated
that during a meeting, S3 informed complainant that one of the systems
administrator positions was being abolished and that it would be up
to Civilian Personnel to decide which position would be abolished.
S1 further stated that complainant interpreted this as a statement
that her position was being abolished. The agency further noted in
her declaration, S3 stated that she made this management decision "for
efficiency of the organization" because she felt that there was no need
for two administrators.
Regarding claim (n), S1 stated that complainant was reassigned to a
new immediate supervisor because she was under Management Systems.
The agency further noted in her declaration, S3 stated that after
complainant filed a complaint against S1, she made the decision that
complainant could no longer be supervised by S1; and that it would "not
be healthy or appropriate" to have S1 supervise complainant during the
processing of complainant' s complaint. S3 stated that she then needed
to determine the next line of supervisory authority. S3 stated that
she determined that the Supervisor of the Computer Systems Section would
be the "logical person" to be assigned as complainant's new supervisor
because complainant's section was being transferred into the Computer
Systems Section. S3 also stated that she decided to directly supervise
complainant until the reorganization was "completely finished."
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, the Commission finds that the agency
articulated legitimate, non-discriminatory reasons for its employment
actions, which we determine were not persuasively rebutted by complainant.
Complainant has not demonstrated that the agency's articulated reasons
for its employment actions were a pretext for discrimination.
Harassment
To establish a claim of harassment based on race, color, national
origin, and sex, a complainant must show that (1) she is a member of
the statutorily protected class; (2) she 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. USPS, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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. 915.003 (March 8, 1994).
Further, the incidents must have been �sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment.� Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review of the record, we find that the environment created within
complainant's workplace was not sufficient to show a hostile work
environment due to her sex, age or in reprisal for prior protected
activity. Therefore, we conclude that complainant failed to establish
her claim of unlawful discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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
March 7, 2005
__________________
Date
1On January 24, 2003, complainant was
reassigned to the 96th LRS/Management and Systems Flight (LGRS)/Systems
Management Section (LGRSS).