01963427
10-30-1998
Ethel M. Ware, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Ethel M. Ware v. Department of Justice
01963427
October 30, 1998
Ethel M. Ware, )
Appellant, )
)
v. ) Appeal No. 01963427
) Agency No. I-92-6131
Janet Reno, ) 187-4-513
Attorney General, )
Department of Justice, )
Agency. )
________________________________)
DECISION
INTRODUCTION
On April 2, 1996, appellant timely initiated an appeal to the Equal
Employment Opportunity Commission (Commission) from the final decision
of the agency concerning her allegation that the agency discriminated
against her in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. This appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
Whether the agency discriminated against appellant on the bases of her
race (African-American) and sex (female) and retaliated against her when
she was not provided with the opportunity to perform special duties,
and she was subjected to harassment based on race.
BACKGROUND
Appellant filed a formal EEO complaint alleging race and sex
discrimination and retaliation (prevailed on EEO complaint in 1990)
when she received a "fully successful" interim performance rating in
1992 and when she was not provided with opportunities to perform special
duties so that she could earn extra points on her Officer Corps Rating
(OCORS). In November 1992, appellant filed a second complaint alleging
race and sex discrimination because she was not selected as a GS-11
Special Operations Inspector in July 1992, and she was subjected to a
racially hostile environment. The agency accepted the two complaints
and consolidated them for investigation. In its final decision, the
agency determined that appellant was not subjected to discrimination
or reprisal as a result of the various agency actions, nor as a result
of a hostile environment. In her appeal, appellant asserted that she
wanted to pursue an appeal of the agency's findings with regard to the
OCORS assignments and the racial slurs.
At the time of the alleged discriminatory events, appellant was employed
with the agency as a GS-9 Immigrations Inspector in the Inspections
Branch at O'Hare Airport. Appellant had previously filed an EEO
complaint which resulted in her promotion to the GS-9 level in 1990.
The agency does not dispute that appellant's supervisors were aware of
her protected activity.
Appellant alleged that she was subjected to discrimination when she was
allegedly denied assignment opportunities. In her affidavit, appellant
alleged that white and Hispanic males were given more opportunity for
special job assignments, which allowed employees to earn OCORS points.
Appellant acknowledged that she had all of the possible points under that
system that made her eligible for promotion to the GS-11. She argued,
however, that the first five to six special grade 11 selectees were all
males and that some had earned fewer OCORS points than she had.
The Port Director stated in his affidavit that none of the job
assignments at O'Hare would provide points in the OCORs rating system.
He indicated that some assignments were performed on a volunteer basis
depending on employee availability and work shift. He stated that since
the workload had increased, certain work assignments were formalized
that were previously considered outside of the daily work schedules.
He indicated that some male employees were assigned vehicle maintenance
work because they had experience in the area. Supervisor 2, a Supervisory
Immigration Inspector, indicated that the OCORS ratings manual listed
permanent assignments, which included fleet maintenance, that would
provide points for an employee. Supervisor 2 stated that the temporary
duties identified by appellant in her complaint were not listed in the
OCORS manual. According to Supervisor 2, the job assignments to which
appellant refers were unrelated to OCORs and were performed voluntarily,
and that appellant had never volunteered.
While one employee witness stated that she had seen appellant's name
on a volunteer list, appellant has not specifically argued volunteer
status herself. Another black female employee alleged that the work
assignments that earn points in the OCORS rating system were given to
male employees.
In its final decision, the agency noted that there appeared to
be conflicting statements by the various witnesses concerning the
availability of the assignments earning OCORS points. Specifically,
two female employees expressed their beliefs that assignments were
not given based on race or sex. Furthermore, the employee affidavits
contradicted the representations by the managers that assignments would
earn points toward an OCORS rating. However, the agency determined
that the difference in versions did not suggest pretext, as there was
no evidence that race, sex, or reprisal motivated assignment decisions.
Appellant also asserted that she was subjected to a hostile environment
based on race because of comments made by her first-line supervisor, a
Supervisory Immigration Inspector, and the failure of the Deputy District
Director to respond to her complaints about these comments. She stated
that a white, female employee, Employee A, advised her that at one time
in 1992 the first-line supervisor referred to black co-workers as "porch
monkeys" when talking with a group of white employees. That employee
stated that in addition to the above comment, the first-line supervisor
would also use other derogatory names for black employees when talking
with a group of white employees. Appellant also alleged that in 1993 she
was told that the first-line supervisor made a comment that all black
babies look alike. The union representative stated that appellant had
contacted him about these comments of which she had been made aware, and
that he then approached the Deputy District Director about appellant's
concerns. According to the union representative, the Deputy Director
stated that he could not act until appellant had corroborating evidence
that remarks were made.
Employee A indicated that she had observed the first-line supervisor
using terms such as "porch monkey" and "Moe and John" when referring to
Black employees. She stated that she most likely told appellant about
these incidents in 1992 when the first-line supervisor took over duties
as appellant's supervisor.
The first-line supervisor denied that he had made such comment using the
term "porch monkey." He also stated that on the occasion baby pictures
were displayed, Supervisor 2 had commented that there were no pictures
of black babies, to which he responded that all babies look alike. He
indicated that he had been a supervisor since June 1992. He stated that
he supervised appellant from June 1992 to October 1992.
The Deputy District Director stated that he never had a conversation
with the union representative in which accusations of insensitive conduct
were made against a white, male supervisor. He stated that in September
1993 he received a letter from another union official complaining of
inappropriate memorabilia brought to the facility, but that the letter
did not mention the particular allegations made by appellant.
The Deputy Director also stated that he received an anonymous call from
a physician at the University of Chicago Hospital advising him that
a female employee had been treated there for chest pains associated
with an anxiety attack. The patient supposedly told the physician that
the stress was caused by a white male supervisor at her job using the
term "porch monkey" and commenting that "all Black babies look alike."
The physician informed the Deputy Director that the patient had stated
that the latter incident also involved a female supervisor whose first
name she gave. Based on this information, the Deputy Director submitted
a memorandum dated September 9, 1993 to the District Director reporting
the tip from the physician. The Port Director stated that at some point
in September 1993, two supervisors were assigned to review allegations
of discrimination with each employee.
In its final decision, the agency concluded that the affidavits of
several employees indicated that at times the first-line supervisor
would use insensitive names for racial and ethnic groups. We note the
affidavits of other Immigration Inspectors who stated that the first-line
supervisor would make ethnic comments, such as comments about passengers
arriving on flights from other countries. Another employee stated that
the first-line supervisor made jokes about all ethnic groups. The agency
determined that while appellant alleged that the first-line supervisor
had commented that all black babies look alike, Supervisor 2, to whom
the comment was actually made, testified that the comment was actually
phrased as "all babies look alike." The third person, who allegedly
heard the comment and then reported it to appellant, acknowledged that
she was not within close proximity when the comment was made.
The agency determined that the evidence indicated that while the comments
may have been made, they did not result in a racially hostile environment
for appellant. It concluded that there was no evidence that insensitive
comments were made in appellant's presence. It noted that the "porch
monkeys" comment was likely made before the first-line supervisor was
actually a supervisor. It noted that the affidavits indicated that the
first-line supervisor avoided making comments around those who could
be offended. Furthermore, it concluded that comments were not directed
at the listeners, and that none of the listeners indicated that the
comments were unwelcome.
The agency also indicated that when the Deputy Director learned from the
September 1993 letter that there were allegations of racial problems,
he took immediate steps to investigate. However, he testified he had not
been aware of specific accusations against the first-line supervisor.
In her comments on appeal, appellant argues that Supervisor 2 initiated
the comments about the lack of pictures of black babies posted, and thus
her denial of any racial comments on that subject were to protect herself.
Appellant contends that while one management official had denied any
knowledge of racial remarks, that particular individual had brought a
dagger and a Ku Klux Klan sword to work to show another supervisor.
Appellant again argued that there were assignments available at the
facility that would earn OCORS points.
In its response, the agency contended that appellant never saw the sword,
but only heard of it from another employee. It stated that when a
supervisor brought a Nazi dagger in to show some of his memorabilia
collection, he was told not to do so again.
ANALYSIS AND FINDINGS
At the outset of the analysis, the Commission finds that appellant has
failed to establish a prima facie case of reprisal with regard to the
various alleged actions that occurred during 1992 and 1993. The agency
has acknowledged that the management officials were aware of appellant's
EEO activity, which was resolved by her promotion in 1990. However,
since more than a year had elapsed between the time of protected activity
and the adverse actions, appellant has failed to show the required nexus
creating an inference of reprisal.
Appellant's allegations of race and sex discrimination constitute
claims of disparate treatment which is properly analyzed under the
three-tier order and allocation of proof as set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
The McDonnell Douglas analytical paradigm need not be adhered to
in all cases. In appropriate circumstances, when the agency has
articulated legitimate, nondiscriminatory reasons for its conduct, the
trier of fact may dispense with the prima facie inquiry and proceed to
the ultimate stage of the analysis, i.e., whether the complainant has
proven by preponderant evidence that the agency's explanations were
pretext for discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Since the agency has
articulated a legitimate, nondiscriminatory reason for its decisions,
the Commission will consider whether the agency's explanation was a
pretext for discrimination.
With regard to the allegation that appellant was denied assignment
opportunities, we find that appellant has provided insufficient evidence
for a finding of discrimination. While, as the agency conceded,
there is a lack of clarity among the various affidavits as to which
assignments could result in OCORS points, there is little evidence to
support appellant's claim that she was denied assignments for which she
could earn points. Appellant has only generally alleged that certain
assignments have been denied women. She has not alleged a specific
incident when she was denied a particular duty. Furthermore, the
evidence indicates that the positions were awarded on a volunteer basis.
Appellant has not alleged that she volunteered for specific positions
but was improperly denied opportunities. We note that the agency's FAD
indicated that the various inspectors' affidavits contradicted those of
the management officials indicating that there were no additional duties
to earn OCORS ratings. However, appellant has not specifically named an
instance when she was denied a position with a possibility of points.
With regard to appellant's allegation that she was subjected to a hostile
environment based on race, in order for harassment to be considered
conduct in violation of Title VII, the conduct need not seriously
affect an employee's psychological well-being or lead the employee to
suffer psychological injury. Rather, as stated in Meritor Savings Bank
v. Vinson, 477 U.S. 57 (1986), a case involving a claim of discrimination
based on sex, the applicable standard provides that Title VII is violated
when the work place is permeated with discriminatory behavior that is
sufficiently severe or pervasive to create a discriminatorily hostile
or abusive environment. This standard requires an objectively hostile
or abusive environment, one that a reasonable person would find hostile
or abusive. See Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 371
(1993).
The severity of the alleged harassment must be determined from a totality
of the evidence. One of the critical components in this type of claim
is the environment. Evidence of the general work atmosphere as well of
incidents of specific hostility directed toward the complainant, is an
important factor in analyzing such a claim. Hall v. Gus Construction,
842 F.2d 1010 (8th Cir. 1988).
We find that appellant has not established that she was subjected to
harassment based on her race. To prevail on a claim of harassment,
a complainant must show that (1) she belongs to a protected group;
(2) she was subjected to harassment that was sufficiently severe or
pervasive to alter the conditions of employment and create an abusive or
hostile environment; and (3) the harassment was based on an impermissible
factor such as race. See generally, Taylor v. Dept. of the Air Force,
EEOC Request No. 05920194 (July 8, 1992).
First, we note that appellant belongs to a protected group. However, we
find that the incidents which occurred were not sufficiently severe or
pervasive to alter the conditions and create the hostile environment.
Specifically, we note that none of the comments were made directly
to appellant or in her presence. In addition, we note that appellant
referenced two comments over a two year period, and of which she learned
from other people. We do not find that the comments, taken as a whole
and made outside of appellant's presence, were sufficiently severe as
to create a hostile environment.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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:
Oct. 30, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations