0120080323
02-16-2010
Edith Moore, Complainant, v. John McHugh, Secretary, Department of the Army, Agency.
Edith Moore,
Complainant,
v.
John McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080323
Hearing No. 120-2004-00693X
Agency No. ARMTMCFE04OCT0001
DECISION
On October 19, 2007, complainant filed an appeal from the agency's October
1, 2007 final order concerning her equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether substantial evidence supports the EEOC Administrative Judge's (AJ)
finding that complainant was not subjected to reprisal when it counseled
her regarding her attire and issued her a performance evaluation in
which she received a rating of "Excellence" in 25-74% of the evaluation
objectives.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-2101-12 Transportation Planning Specialist in the Surface
Deployment and Distribution Command (SDDC) in Fort Eustis, Virginia.
On May 31, 2005, complainant filed an EEO complaint alleging that she
was discriminated against in reprisal for prior protected EEO activity
under Title VII when on August 22, 2003, her supervisor (S) counseled
her for dressing inappropriately, and on December 15, 2003, S issued
her a performance rating of "Excellence" in 25-74% of the objectives.
Complainant requested a hearing before an AJ,1 and during the hearing,
complainant testified that on August 11, 2003, S called her into her
office, closed the door, and gave her a letter that stated that denim
is not appropriate business attire, and suits, skirts, pants, dress
slacks, and dress tops are appropriate business attire for women.
Complainant further testified that S told her that shorts were not
appropriate business attire, and if she wanted a promotion, she should
dress appropriately for the office. Complainant stated that she was
not aware that her office had a dress code and had never been told that
she dressed inappropriately before this incident. Complainant further
testified that on August 11, 2003, she was wearing a split skirt or
"skorts," a top, slip in shoes, a top, and a vest.
Complainant also testified that S retaliated against her when she
received an "Excellence" rating in 25-74% of her objectives (Block 2)
on her evaluation, instead of a Block 1 rating of "Excellence" in 75%
of more of the objectives. Complainant maintained that she previously
received the highest rating on her previous evaluations.
S testified that she began working in complainant's office in October
2002. She stated that about July 2003, she observed complainant
talking to a general while wearing shorts, sandals, and a tank top
or a t-shirt. S further stated that she called complainant into her
office and advised her that shorts were inappropriate office attire
and showed her a copy of the agency's "Dress and Appearance Guidance."
She also stated that she told complainant that if she was serious about
receiving a promotion, she had to dress for success. S testified that
although the dress guidance was specifically for the Alexandria office,
she thought that the policy also applied to the Fort Eustis office because
both offices are within the Military Traffic Management Command (MTMC).
S stated that she counseled complainant about her attire because she
observed complainant wear shorts for several days, which she thought was
"extreme," and complainant had previously talked to her about a promotion.
Hearing Transcript (HT), p. 244. She described her conversation with
complainant as a "mentoring session" and maintained that there was no
written documentation regarding the matter. Id.
Regarding complainant's evaluation, S testified that complainant did not
receive the highest Block 1 rating because she had to rewrite portions
of the Monthly Readiness Report and Joint Quarterly Readiness Report
that complainant was responsible for preparing because of spelling
and grammatical errors. She further stated that some of complainant's
work products were submitted late and needed clarification. S also
stated that complainant's work on the Continuity of Operations Plan
(COOP) merely consisted of her adding a few sentences to work that was
otherwise produced by a contractor.
Additionally, S testified that complainant's attitude changed after she
did not receive a promotion in December 2002, and it was difficult to
interact with her after she did not receive the promotion.
AJ's Decision
In a decision dated August 21, 2009, the AJ concluded that complainant
failed to show that she was subjected to retaliation. Specifically, the
AJ determined that, assuming that complainant established a prima facie
case of reprisal, the agency provided legitimate, non-discriminatory
reasons for its actions that were not proven to be pretext for reprisal
by complainant. The AJ further concluded that to the extent that
complainant alleged that she was subjected to retaliatory harassment,
complainant failed to show that the alleged actions were sufficiently
severe or pervasive to constitute a hostile work environment.
CONTENTIONS ON APPEAL
Complainant contends that the AJ erred in finding no reprisal.
Complainant argues that her office did not have a dress code, and
S's counseling was "nothing more than an opportunity to put her in
her place." Complainant's Brief, p. 21. Complainant argues that
a Colonel who testified at the hearing contradicted himself because
during the investigation, he stated that he had never seen complainant
dress inappropriately at work but later testified at the hearing that
complainant's attire violated the dress code policy. Complainant further
contends that the Colonel's claim that complainant's work on COOP was a
"cut and paste job" was not credible because the Colonel is a reservist
who will "say anything to keep his 'cash cow' going." Complainant's
Brief, pp. 7, 8. The agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In order to prevail in a disparate treatment claim, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
We note that the Commission has stated that adverse actions need not
qualify as "ultimate employment actions" or materially affect the terms
and conditions of employment to constitute retaliation. EEOC Compliance
Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998);
see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)
(finding that the anti-retaliation provision protects individuals from a
retaliatory action that a reasonable person would have found "materially
adverse," which in the retaliation context means that the action might
have deterred a reasonable person from opposing discrimination or
participating in the EEO process).
For purposes of analysis, we assume that complainant established a
prima facie case of reprisal. Nonetheless, we find that the agency
provided non-discriminatory explanations for its actions. Specifically,
S testified that she told complainant that her attire was inappropriate
for work because she observed complainant wearing shorts at the office
and knew complainant was seeking a promotion. She stated that no
discipline was issued to complainant regarding her attire, and there
is no documentation regarding the matter. S further testified that
complainant received a Block 2 rating because some of her major work
products were submitted late, contained grammatical and spelling errors,
and borrowed heavily from a contractor's work.
Complainant contends that she was wearing skorts, not shorts. However,
as its name indicates, skorts are a type of shorts. The American
Heritage Dictionary defines skorts as a "pair of shorts having a flap
or panel across the front and sometimes the back to resemble a skirt."
The American Heritage Dictionary of the English Language, Fourth Edition
(2000). Complainant further contends that her office does not have
a dress code, the dress guidance shown to her was for another office,
and S's counseling was "nothing more than an opportunity to put her in
her place." However, even by complainant's own account, S merely used
the guidance as a basis to advise complainant of what she believed was
appropriate attire for the office. While reasonable minds may disagree
about what is appropriate work attire, we do not find S's opinion
about complainant's work attire to have been motivated by a desire to
discriminate against her due to her previous EEO activity.
Complainant further argues that she should have received a Block 1
rating because she previously received all Block 1 ratings. However,
complainant's previous ratings were issued by other supervisors, and
she is not entitled to Block 1 ratings in perpetuity merely because she
received such ratings in the past. Complainant also argues that the
Colonel's claim that her work on COOP was a "cut and paste job" was not
credible because the Colonel is a reservist who will "say anything to
keep his 'cash cow' going." However, S stated that complainant's Block
2 rating was also based on complainant's deficiencies in preparing the
Monthly Readiness Report and Joint Quarterly Readiness Report. We find
that substantial evidence in the record supports the AJ's determination
that complainant failed to prove that the agency's explanations were
pretext for unlawful discrimination.
With respect to complainant's hostile work environment claim (2), we
find support for the AJ's conclusion that the alleged incidents were
not sufficiently severe or pervasive enough to constitute a hostile
work environment. Therefore, we find that the AJ properly found that
complainant was not subjected to unlawful retaliatory harassment or
discrimination.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions
on appeal, the Commission AFFIRMS the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
______02/16/10____________
Date
1 We note that on September 1, 2005, an AJ issued a decision without
hearing in which she determined that complainant was not subjected to
unlawful discrimination. The agency fully adopted the AJ's finding, and
complainant appealed the matter to the Commission. In a decision dated
February 15, 2007, the Commission found that there were genuine issues
of material fact in dispute in this case and remanded this matter to the
AJ for a hearing. Edith Moore v. Department of the Army, EEOC Appeal
No. 0120060487 (February 15, 2007). Consequently, the AJ conducted a
hearing on complainant's complaint on June 20, 2007 and July 12, 2007.
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0120080682
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080323