01982687
12-17-1999
Klaudia M. Cox, Complainant, v. 120-96-5806X Donna Shalala, Secretary, Department of Health & Human Services, Agency.
Klaudia M. Cox, )
Complainant, )
) Appeal No. 01982687
v. ) Agency No. 387-94, 322-92
) Hearing No. 120-96-5805X,
)
120-96-5806X
Donna Shalala, )
Secretary, )
Department of Health & Human Services, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission 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,
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.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001. For the
reasons that follow, the Commission affirms the agency's FAD as clarified.
Complainant claims that she was discriminated against on the bases of
race (White) and reprisal (prior EEO activity) when her request for a
transfer was continuously denied from May 1990 to March 1992 (Complaint
No. 322-92). She also claims discrimination on these bases, as well as
on the bases of sex (female) and age (51), as evidenced by the following
incidents: in September and October 1993, she was denied a promotion
to the position of Section Chief; in February 1993, she was required to
temporarily relocate to another office; in May 1993, her request for an
extension to complete work was denied; in June 1993 her Team Leader duties
were terminated; and in August 1993, she was required to work overtime to
complete an assignment (Complaint No. 387-94). Complainant also claims
that she was subjected to a hostile work environment as a consequence
of all of the above incidents.
The record reveals that during the relevant time, complainant was
employed as a Team Leader Editor in the Editorial Section of the
Publications Branch of the Division of Data Services at the agency's
National Center for Health Statistics, Center for Disease Control and
Prevention, located in the Washington, D.C. area. Believing she was a
victim of discrimination and harassment, as referenced above, complainant
sought EEO counseling and, subsequently, filed the instant complaints.
At the conclusion of the investigations, complainant received a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a recommended decision (RD)
without a hearing, dismissing complaint No. 387-94, and finding no
discrimination regarding complaint No. 322-92. The FAD adopted the RD.
Complainant makes no statement on appeal, and the agency requests that
we affirm its FAD.
The AJ noted that complaint No. 387-94 was dismissed by the agency for
untimely counselor contact, and that the Commission had reversed this
determination. On remand, the Commission ordered the agency to resume
processing on the non-promotion issue, which was determined to be timely
based on complainant's submission of a previous EEO counselor's report
with an earlier date of contact. The Commission also ordered the agency
to consider whether the remaining incidents may be considered timely under
a continuing violation theory, and also to consider whether all of the
claimed incidents constituted a claim of harassment based on a hostile
work environment. See Cox v. Department of Health and Human Services,
EEOC Appeal No. 01945046 (January 27, 1995).
Based on the investigation record, the AJ concluded that complainant
did not establish that the incidents comprising complaint No. 387-94
constituted a �continuing violation� because the incidents were not
interrelated either in terms of the type of events, or the identity
of the responsible management officials, or otherwise. Accordingly,
the AJ found that this complaint should be dismissed as untimely.
Although we concur with this determination, we find that the AJ did not
address the Commission's prior decision that the non-promotion issue
was independently timely because of the earlier EEO counselor report
submitted by complainant. Therefore, the non-promotion issue may not
properly be dismissed as untimely, and we clarify the FAD accordingly.
Notwithstanding this dismissal, however, the AJ also addressed the
non-promotion issue on the merits, and found that complainant failed
to establish a prima facie case of discrimination under any of the
bases claimed. Specifically, based on undisputed evidence, the AJ
determined that no GS-13 Section Chief positions were available at the
time in question, and that the comparators identified by complainant
were promoted to GS-13 positions other than Section Chief, and that
complainant was either not qualified or not eligible for selection to
these positions. The AJ further held that complainant failed to produce
any evidence to suggest that agency's actions were a pretext for race,
sex, or age discrimination, or that her non-promotion to Section Chief
was in any way related to her prior EEO activity.
Next, the AJ concluded that complainant failed to establish a prima
facie case of race discrimination or reprisal regarding the denial of her
request for a transfer out of the Division of Data Services (complaint
No. 322-92) because she failed to demonstrate that similarly situated
employees not in her protected classes were treated differently under
similar circumstances, or to present other evidence which, if otherwise
unexplained, would permit an inference of discrimination to be drawn.
Principally, the AJ found that the identified comparator was transferred
to a position within the Division of Data Services, and for this reason
(and other reasons), was not �similar� to complainant within the meaning
of the above legal standard. Moreover, the AJ found that the Division
Director endeavored to obtain the desired transfer for complainant, but
was unable to locate a suitable position (without loss of grade) for her
outside of the Division. The AJ additionally found that complainant
herself was unable to identify a suitable position to satisfy her
transfer request. As above, the AJ again held that complainant failed
to produce any evidence to suggest that agency's actions were motivated
by race, sex, or age discrimination, or that her inability to transfer
to a position outside of the Division of Data Services was related to
her prior EEO activity.
In addressing complainant's claim of harassment and a hostile work
environment, the AJ considered all of the incidents in complainant's
complaints, including those dismissed,<2> and determined that they
were not sufficiently pervasive or severe as to rise to the level of
harassment or created a hostile work environment. In reaching this
conclusion, the AJ held that the agency's actions were reasonable,
and not hostile to complainant. Based on the legal standards set forth
in Jackson v. U.S. Postal Service, EEOC Appeal No. 01972555 (April 15,
1999), we concur with this determination.
The Commission finds that the AJ's RD summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or
were motivated by discriminatory animus toward complainant's race,
sex, or age. We discern no basis to disturb the AJ's determination.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's FAD as CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 17, 1999
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
Equal Employment Assistant 1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2In a May 15, 1997, Order the AJ also dismissed complaint No. 687-90
and complaint No. 003-96.