01981528
07-27-2001
Rose M. Badrak, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Rose M. Badrak v. Department of the Air Force
01981528
July 27, 2001
.
Rose M. Badrak,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01981528
Agency Nos. AR000970518/9
Hearing Nos. 360-96-8767X; 360-97-8151X
DECISION
Rose M. Badrak (complainant) timely initiated an appeal from the agency's
final decision concerning her equal employment opportunity (EEO) complaint
of unlawful 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.
Complainant alleges, in her first complaint (Complaint 1), that she
was discriminated against on the bases of sex (female) and age (43 at
the relevant time) and subjected to retaliation for prior EEO activity
(under Title VII and the ADEA) when:
(1) she was reassigned on July 12, 1995, from the Machine Shop to the
Module Repair Section;
she was referred for a fitness for duty examination on July 13, 1995;
on July 18, 1995, her supervisor (S1) told a union steward that he
would take disciplinary action against complainant for her excessive
leave usage in order to embarrass her;
she was counseled about her sick leave usage and her record was annotated
to record this counseling session on July 20, 1995; and
S1 subjected her to sexual harassment when he asked her about her
menstrual cycle and pointed to her pubic area.
In her second complaint (Complaint 2), complainant alleged that she was
subjected to retaliation for prior EEO activity (under Title VII and
the ADEA) when:
her new supervisor (S2) denied her request for two hours of sick leave
on February 23, 1996;
on February 27, 1996, she was issued a �Letter of Intentions� which
indicated that she would be removed if she did not return to duty
or resign;
on February 27, 1996, a �Letter of Responsibility� concerning the need
to provide medical documentation in support of sick leave, issued to
complainant on August 11, 1995, was extended for six months; and
her request for 152 hours of advanced sick leave was denied.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Machinist Tool Operator in the
Module Repair Section <1> at the agency's San Antonio Air Logistics
Center, Kelly Air Force Base, in San Antonio, Texas, filed formal
EEO complaints with the agency on October 24, 1995 and May 15, 1996,
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ determined that the complaints involved no genuine issues of
material fact and therefore issued a decision on Summary Judgment.
Turning first to Complaint 1, the AJ concluded that complainant establish
a prima facie case of age and sex discrimination, noting that she belonged
to the relevant protected groups and that she was subjected to adverse
actions. The AJ then noted that complainant did not establish a prima
facie case of sexual harassment because, even if the incident described
in Issue 5 occurred, it was not sufficiently severe or pervasive to
create a hostile work environment.<2>
The AJ then concluded that the agency articulated legitimate
non-discriminatory reasons for its actions. Specifically, agency
officials stated that complainant was reassigned pursuant to a negotiated
settlement agreement to which complainant agreed and that she was referred
for a Fitness for Duty examination pursuant to agency procedures based
on her history of leave usage. The record establishes that complainant
was on leave for more than half the total working days in 1994 and that
she was continuing in that pattern in 1995. The AJ noted that agency
officials testified that this behavior was severely impacting the work
assignments of other employees in complainant's section and that they
believed that the use of so much leave suggested that complainant could
not perform her duties.
As for complainant's claim that S1 contacted a union steward about
complainant's leave usage in order to embarrass her, S1 noted that he did
this in the spirit of partnership and out of concern for complainant's
frequent absences. The union steward confirmed that this was the case
and stated that it was common practice for management to consult the
union in such circumstances. Similarly, S1 testified that complainant
was counseled about her use of sick leave not for any discriminatory
reason, but because of her use of sick leave was excessive. S1 noted
that he attempted to work with complainant on her leave usage by having
her request evaluation by Family Services so that she could receive an
accommodation of duty hours. The record indicates that Family Services
works with employees who, due to family matters, need to adjust their
duty hours. S1 indicated that after he set up an appointment for
her, complainant told him that she did not need assistance. Because
complainant's sick leave usage continued to cause serious problems for
her unit, she was counseled about the matter.
The AJ then turned to complainant's claim concerning S1's remarks about
her menstrual period. S1 denied that any such remarks were made, but
was nonetheless reassigned to another section, so that he no longer
supervised complainant. The AJ reiterated that this incident, even if
complainant's version is true, is insufficient to establish a claim of
sexual harassment.
In regard to Complaint 2, the AJ determined that complainant established
a prima facie case of retaliation, but found that the agency articulated
legitimate non-discriminatory reasons for its actions. Specifically,
S2 noted that complainant was not simply denied two hours of sick leave
on February 23, 1996. Rather, complainant failed to come to work at
her scheduled time and, instead, called two hours after her scheduled
arrival time to request two hours of sick leave. Because complainant
had no accrued sick leave, S2 denied the request and granted leave
without pay instead. S2 noted that he issued a Letter of Intention
to complainant on February 27, 1996, because she had not come to work
since February 14 and had not responded to his requests for medical
documentation regarding her absences. S2 stated that he issued a �Letter
of Intention� in order to determine whether or when complainant would
return to work. Similarly, management officials noted that in August
1995, complainant received a �Letter of Responsibility� in which she was
told to bring in Physician Certifications for her sick leave requests,
due to the fact that she was using an excessive amount of sick live.
On February 27, 1996, the agency sent complainant an updated �Letter of
Responsibility� to extend for an additional six months the period in which
she would have to bring in Physician certificates to substantiate her
sick leave usage. S2 testified that this was done because complainant
continued to use excessive amounts of sick leave and failed to provide
Physician certification for sick leave on a regular basis. Finally, in
regard to the denial of complainant's request for 152 hours of advanced
sick leave, S2 testified that he denied the request because there was
no reason to believe that complainant would be able to pay back the sick
leave, given her prior history of sick leave usage.
The AJ concluded that complainant raised no genuine issues of material
fact in regard to any of the agency's legitimate non-discriminatory
explanations and that she provided no evidence that these explanations
were a pretext for age or sex discrimination, or retaliation.
Accordingly, the AJ recommended a finding of no discrimination.
The agency adopted the agency's summary of evidence, findings of fact,
and conclusions of law and determined that complainant failed to show by
a preponderance of the evidence that she was subjected to discrimination.
Complainant raises no contentions on appeal and the agency asks that
its FAD be affirmed.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the AJ
properly determined that there are no genuine issues of material fact
in this case. The AJ's decision properly 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 age or sex.
In so finding, we note that complainant failed to dispute the agency's
legitimate, non-discriminatory explanations for the actions at issue.
For example, complainant did not dispute that she was reassigned to the
Module Repair Section pursuant to a negotiated settlement agreement that
she signed. Nor did she dispute that supervisors frequently consult
with union stewards concerning the leave usage of employees. She did
not dispute that she used an excessive amount of leave during 1994 and
1995 and that she failed to submit appropriate medical documentation in
support of this leave. While she argued that, unlike younger employees,
she was not granted a change in duty hours to better serve the needs
of her family, she did not dispute that she refused to meet with Family
Services so that her request could be discussed.
In regard to complainant's claim of sexual harassment, the AJ properly
concluded that the incident of harassment described by complainant, even
if true, is not sufficiently severe or pervasive to create a hostile work
environment. It is well-settled that, unless the conduct is very severe,
a single incident or a group of isolated incidents will not be regarded
as creating a discriminatory work environment. See Walker v. Ford Motor
Company, 684 F.2d 1355, 1358-9 (11th Cir. 1982); Johnson v. Bunny Bread
Co., 646 F.2d 1250, 1257 (8th Cir. 1981). A supervisor's remarks on
several occasions unaccompanied by any concrete action are usually not
sufficient to state a claim of harassment. Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996). In the instant case,
complainant alleged that S1 asked her about her menstrual cycle the day
after she told him she needed sick leave due to her menstrual cycle.
This incident is not severe enough to state a claim of harassment.
In sum, complainant failed to raise a genuine issue of material fact in
regard to any of the explanations provided by the agency for its actions.
We therefore discern no basis to disturb the AJ's finding that complainant
failed to establish discrimination or retaliation by a preponderance of
the evidence. After a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
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
July 27, 2001
Date
1 In September 1994, complainant was reassigned to the position of
Secretary in the Financial Management Directorate after her position as
a Machine Tool Operator Helper in the Machine Shop was eliminated due to
a reduction-in-force. Complainant was unhappy with her reassignment and,
pursuant to a negotiated settlement agreement, she was reassigned to a
position in the Module Repair Section. She held this position during
the events which are the subject of this decision.
2 It appears that the AJ neglected to determine whether complainant
established a prima facie case of retaliation in regard to Complaint 1.
We note, however, that the AJ did find that the agency articulated
legitimate non-discriminatory reasons for its actions. Accordingly, we
will assume for the purpose of this decision that complainant established
a prima facie case of retaliation in regard to Issues 1-5.