01a42369
09-26-2005
Sherry M. Dravis, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Sherry M. Dravis v. Department of the Navy
01A42369
September 26, 2005
.
Sherry M. Dravis,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A42369
Agency Nos. 97-68711-009
99-68711-003
Hearing No. 340-200-03746X
DECISION
Complainant timely initiated an appeal from two final agency decisions,
both dated April 16, 2004, addressing the two captioned complaints that
claimed 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
On April 24, 1995, complainant was hired as a Fire Protection Inspector,
GS-081-7, at the agency's Engineering Field Activity West in San Diego,
California, for a term appointment, which was not to exceed March
31, 1997. Subsequently, complainant was promoted to the position
of Fire Protection Inspector, GS-081-8. Effective April 1, 1997,
complainant's term appointment was extended, not to exceed April 21, 1999.
Complainant filed the two instant formal complaints on September 17, 1997
(Agency No. 97-68711-009) and August 26, 1999 (Agency No. 99-68711-003),
respectively.
In Agency No. 97-68711-009, complainant claimed that she was discriminated
against on the bases of sex (female) and in reprisal for prior EEO
activity when:
(1) from October 1996 to August 1, 1997, she was sexually harassed and
was subjected to a hostile and offensive work environment by a co-worker;
(2) on August 14, 1997, her immediate supervisor subjected her to
retaliation, when her duty station and work hours were changed; and
(3) on September 8, 1997, an agency EEO Counselor would not allow her
to have her EEO representative participate in a conference call.
In Agency No. 99-68711-003, complainant claimed that she was discriminated
against on the bases of sex (female), disability and in reprisal for
prior EEO activity when:
(1) on April 21, 1999, she was terminated; and
(2) the benefits associated with her work-related injury were terminated
on April 21, 1999.<1>
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing . However, complainant later withdrew the
hearing request, and requested that the agency issue a final decision
on the consolidated complaints.
Regarding Agency No. 97-68711-009, the agency issued a final decision,
finding no discrimination. The agency found that complainant
established a prima facie case of reprisal discrimination because
agency management was aware of complainant's prior protected activity.
Regarding discrimination on the basis of sex, the agency determined that
it would not address whether or not complainant established a prima facie
case because it articulated legitimate, non-discriminatory reasons for
its actions. The agency found that complainant failed to present any
evidence which demonstrated that management's articulated reasons for
its actions, discussed below, were a pretext for discrimination.
The agency determined that the alleged sexual harassment by the co-worker
identified in claim (1) in Agency No. 97-68711-009, was not sufficiently
severe or pervasive to alter the conditions of complainant's employment,
or to create an abusive working environment. Moreover, the agency noted
that the agency conducted a prompt investigation of complainant's claims,
and that following an investigation, the agency determined that no sexual
harassment had been found.
Regarding claim (2) in Agency No. 97-68711-009, the record reflects that
the Supervisor denied retaliating against complainant by reassigning her
to Hunter's Point fire station, and changing her hours. The Supervisor
stated that there were problems at Hunter's Point where inspections were
not being conducted, and that a fire inspector was needed. Specifically,
the Supervisor stated that because he felt that there needed to be a
distance between complainant and the identified co-worker (identified
in claim (1)), he assigned complainant and the co-worker to Hunter's
Point on a rotational bases. The Supervisor stated that complainant
was already "technically assigned to Hunter's Point, but worked out of
the Mare Island facility, but I felt that to be fair to both of them,
I would assign them both on a rotational basis." The Supervisor stated
that the rotation "was a reasonable and fair solution."
With respect to the portion of claim (2) relating to a change in
work hours, the Supervisor stated that he asked complainant to changed
her work hours from 6:30 a.m. to 2:30 p.m. to 7:00 a.m. to 3:00 p.m.
Specifically, the Supervisor stated that he felt that the first half
hour was "completely unproductive work time," and felt that the new hours
would increase complainant's productivity. The Supervisor further stated
that because complainant complained about the change, she was ultimately
allowed to keep a 6:30 to 2:30 schedule.
Regarding claim (3) in Agency No. 97-68711-009, the record contains an
affidavit from the Employee Relations Specialist (Specialist). Therein,
the Specialist denied that he violated complainant's rights by not
allowing her to have her EEO representative participate in a conference
call. The Specialist further stated that he never had a conversation
with complainant on September 8, 1997. The Specialist stated that he had
a conference call scheduled with complainant on September 3, 1997 to
conduct the final interview, but that when he called complainant at work,
she informed him that she wanted to call him from home because she was
uncomfortable talking about her complaint while at work. The Specialist
stated that because complainant did not call him back on September 3, 4,
or 5, 1997, he issued a Notice of Final Interview on September 5, 1997.
Further, the Specialist stated that he did not discriminate against
complainant based on her sex or prior EEO activity.
Regarding Agency No. 99-68711-003, the agency issued a final decision,
finding no discrimination. As to complainant's sex claim, the agency
determined that it would not address whether or not complainant
established a prima facie case because it articulated legitimate,
non-discriminatory reasons for its actions. Regarding complainant's
disability claim, the agency found that complainant failed to establish
a prima facie case of disability discrimination.
As to complainant's reprisal claim, the agency found that complainant
established a prima facie case of reprisal discrimination because
management was aware of her prior EEO activity. Further, the agency
found that complainant failed to present any evidence which demonstrated
that management's articulated reasons for its actions were a pretext
for discrimination.
Specifically, regarding claim (1) in Agency No. 98-68711-003, the
Supervisor stated that the agency's EFA West was in the process of
downsizing. Specifically, the Supervisor stated that the Mare Island
site office closed in May 1999; that the Oakland Naval Hospital site
closed in October 1999; and that the Hunter's Point site was scheduled
to close in May 2000. The Supervisor stated that "at the time of her
termination, [Complainant] was under a term appointment that was due to
expire on April 21, 1999, so given the downsizing mode, the decision
was made to terminate her upon the expiration of her appointment."
The Supervisor stated that since complainant's termination, no other
employees were extended beyond their "not to exceed" date. Further,
the Supervisor stated that complainant's sex, disability and prior EEO
activity were not factors in the agency's decision to terminate her at
the expiration of her term appointment.
Regarding claim (2) in Agency No. 99-68711-003, the HR Specialist stated
that complainant was informed that her employment was terminated since
she was on a "time-limited" appointment and that her on-the-job injury
claim would be transferred to the Department of Labor, Office of Workers'
Compensation Programs (OWCP) at the expiration of her term appointment.
The HR Specialist stated that the reason for the transfer to the OWCP
was that "she had been absent and in receipt of Workers' Compensation
payments in excess of one year (approximately February 28, 1998)." The
HR Specialist stated that complainant was not discriminated against
based on her sex, disability or prior EEO activity.
ANALYSIS
To establish a prima facie case of sexual harassment, a complainant
must show that: (1) she belongs to a statutorily protected class;
(2) she was subjected to unwelcome conduct related to her gender,
including sexual advances, requests for favors, or other verbal or
physical conduct of a sexual nature; (3) the harassment complained
of was based on sex; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is
a basis for imputing liability to the employer. See McCleod v. Social
Security Administration, EEOC Appeal No. 01963810 (August 5, 1999)
(citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
With regard to the claim of sexual harassment, the record contains an
affidavit from complainant's supervisor, wherein he stated that the
first time he heard complainant indicate she was sexually harassed
by a co-worker was when complainant filed the instant complaint.
The Supervisor further stated that complainant approached him prior to
pursuing the instant complaint, regarding personality differences with an
agency employee, as well as difficulty in working together; however, the
Supervisor stated that � there was nothing in any of her concerns which
even hinted sexual harassment prior to her EEO complaint." The Supervisor
stated that in late 1996, he became aware of tension between complainant
and the co-worker. The Supervisor stated that complainant and the
co-worker constantly complained to him about each other. The Supervisor
stated "I felt there was a lot of nit-picking between them, and I always
tried to make sure they were working out their differences, especially
when I felt it interfered with their work." The Supervisor stated that
in August 1997, complainant and co-worker informed him at separate times
that the tension between them had become "unbearable, and that something
needed to be done." The Supervisor stated that he then had separate
meetings with complainant and the co-worker in the presence of a union
representative in an attempt to resolve the situation. The Supervisor
stated that during the meetings, neither complainant nor the co-worker
"made any specific allegations against the other, or else I would have
taken specific actions to correct what was wrong." The Supervisor stated
that he later learned through complainant's friend that complainant and
the co-worker "had been intimate at one time, and from there the tension
between them made more sense to me because it was a relationship which
would naturally create problems."
The record also contains an affidavit from a Fire Captain. Therein,
the Fire Captain stated that he never observed anything in the
co-worker's behavior which "I would consider sexually oriented toward
the Complainant." The Fire Captain further stated that he felt that the
tension between complainant and the co-worker was based on "professional
differences." Specifically, the Fire Captain stated that he felt that
complainant and the co-worker's conflict was based on "each of them
believing they were more qualified than the other, and I never personally
observed anything which would have made me think their differences were
based on anything else." The Fire Captain stated that complainant and the
co-worker got involved in "tattle telling on each other." Furthermore,
the Fire Captain stated that the Supervisor did what he could to try to
alleviate the tension between complainant and the co-worker.
In summary, the Commission finds that there is no evidence in that conduct
at issue was sexual in nature or that complainant complained of sexual
harassment by the co-worker.
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, he 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).
We find, assuming complainant established a prima facie case of
discrimination, that the agency articulated legitimate, nondiscriminatory
reasons for the actions which complainant failed to adequately rebut.
We find that complainant has failed to show, by a preponderance of
the evidence, that he was discriminated against on the bases of sex,
disability, or retaliation. We do not address in this decision whether
complainant is a qualified individual with a disability under the
Rehabilitation Act.
In summary, the agency's final decisions finding no discrimination in
Agency Nos. 97-68711-009 and 99-68711-003 were proper and are 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
September 26, 2005
__________________
Date
1The record reveals that on February 27,
1998, complainant injured her lower back at work; complainant filed an
on-the-job injury claim; and never returned to work thereafter.