02A10026
08-30-2002
Agency.
Lucille A. Monko v. Department of the Army
02A10026
8/30/02
.
Lucille A. Monko,
Grievant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 02A10026
DECISION
Grievant timely initiated an appeal from a final agency decision (FAD)
concerning her grievance of 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. For the following reasons, the Commission AFFIRMS
the FAD.
BACKGROUND
The record establishes that during the relevant time, grievant was
employed as a Traffic Management Specialist, GS-2130-11, with the agency's
Deployment Support Command in Ft. Eustis, Virginia. Grievant filed
a grievance dated April 26, 2001, alleging that she was subjected
to disparate treatment due to her prior EEO activity when the agency
suspended her for two days on February 23, 2001, for making disruptive and
abusive remarks to a co-worker and for insubordinate behavior toward her
immediate supervisor, the Chief of the Negotiations and Tender Division
(hereafter Chief). Specifically, the agency charged that on December
15, 2000, grievant told a co-worker, who she did not find to be terribly
helpful, that �I do not need your ass.� The agency stated in its proposed
suspension letter that on January 16, 2001, grievant and the Chief had a
discussion on whether she should be charged sick leave or annual leave for
her attendance at a funeral. At the end of this discussion, the agency
stated that grievant got up to leave, made an obscene gesture with her
hand and middle finger toward the Chief and told him to �go f� yourself.�
In response to the suspension charges, grievant admitted to the charge
of December 15, 2000, however, grievant stated that she did not make
her remark in a disruptive manner, and no one said anything about it.
On the other hand, grievant vehemently denies engaging in the conduct
that led to the insubordination charge on January 16, 2001. She accused
the Chief of having a great imagination and said that he lied about the
nature of their discussion on the date in question. Grievant also averred
that given her prior disciplinary record, her suspension was excessive.
Further, grievant alleged that the suspension was retaliation for her
participation in prior protected EEO activity several months before.
In its Step 1, 2 and 3 responses to grievant's grievance, the agency
upheld the two day suspension. In its Step 3 response, the agency
official determined that the two-day suspension was equitable. He also
noted that he found no evidence that grievant was subjected to disparate
treatment and that the employees cited by grievant as comparative
employees were not similarly situated to her.
In her appeal, grievant essentially reiterates the arguments she made
earlier in the grievance process. Grievant states that she was subjected
to disparate treatment because she engaged in prior EEO activity and is
not considered a favored employee. The agency did not submit a response
to grievant's appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.401(d) provides that a grievant may appeal
to the Commission from a final decision on a grievance by the agency,
the arbitrator or the Federal Labor Relations Authority, when an issue of
employment discrimination was raised in a negotiated grievance procedure
that permits such issues to be raised. After reviewing the Negotiated
Grievance Procedures of the agency's collective bargaining agreement
and the agency's responses to grievant's grievance, it appears that
the Commission has jurisdiction to consider the merits of her appeal.
Accordingly, we will consider below whether the facts in this case
support grievant's allegation that she was subjected to retaliatory
treatment when the agency issued the two day suspension.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in Title VII cases is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Grievant has the initial burden of establishing a prima facie
case of reprisal. Grievant may establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically,
in a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veterans Affairs, EEOC Request No. 05960473
(Nov. 20, 1997), a grievant may establish a prima facie case of reprisal
by showing that: (1) she engaged in a protected activity; (2) the agency
was aware of the protected activity; (3) subsequently, she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000).
If grievant has established a prima facie case, the burden of production
shifts to the agency to articulate a legitimate non-discriminatory reason
for the adverse employment action. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 252 (1981). If the agency articulates a reason
for its action, the burden then shifts back to grievant to establish that
the agency's proffered explanation is pretextual, and that the real reason
is discrimination. Throughout the complaint process, grievant retains
the burden of proof to establish discrimination by a preponderance of
the evidence. It is not sufficient �to disbelieve the employer; the
fact finder must believe the plaintiff's explanation of intentional
discrimination.� St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993) (emphasis in original).
In the case at hand, we find that grievant did establish a prima facie
case of reprisal, given that she had recently engaged in EEO activity and
the same agency officials who took or upheld the challenged personnel
action in this case were involved or aware of grievant's participation
in that activity. The Commission notes that the two day suspension
matches the incidents of misconduct for which grievant was charged.
Specifically, we note the table of penalties allows the agency to
remove grievant for a first offense of insubordination due to defiance
of authority or to impose a ten-day suspension for rude, unmannerly,
impolite acts or remarks. Additionally, the Commission finds that the
comparatives cited by grievant in her grievance either worked in a chain
of supervision different from that sin which she worked, or they engaged
in conduct which was not as severe nor as insubordinate as that charged
to grievant on January 16, 2001. Consequently, we agree with the agency's
finding that the cited employees were not similarly situated to grievant.
See Payne v. Illinois Central R.R., 665 F. Supp. 1308 (W.D. Tenn. 1987)
(similarly situated generally means that the persons who are being
compared are so situated that it is reasonable to believe they would
receive the same treatment in the context of a particular employment
decision).
Upon reviewing the record as a whole, the Commission finds that grievant
failed to show by a preponderance of the evidence that the two-day
suspension imposed by the agency was disproportionate to the offense
for which she was charged. We also find that grievant failed to prove
by a preponderance of the evidence that she was subjected to disparate
treatment because of her prior EEO activity.
Therefore, after a careful review of the record, including grievant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's finding of no reprisal
in relation to grievant's two day suspension.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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).
GRIEVANT'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
8/30/02
__________________
Date