0120073797
04-15-2010
Bennie R. Sheppard, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Bennie R. Sheppard,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120073797
Agency No. 8I1M06009
DECISION
Complainant filed an appeal from the agency's July 31, 2007 final decision
concerning her equal employment opportunity (EEO) complaint alleging
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. For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Secretary at the agency's Eglin Air Force Base facility in Florida.
On March 30, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of race (Black) when:
1. On October 12, 2005, complainant received a Decision to Reprimand,
dated October 4, 2005, and effective October 7, 2005;
2. On January 17, 2006, complainant received a Notice of Decision on
Proposed Suspension, dated January 13, 2006, effective from January 22,
2006 through February 4, 2006;
3. From March 25, 2005 through October 20, 2005, complainant was
subjected to harassment that included the following incidents:
1. On March 25, 2005, her access to her computer was
disabled;
2. On March 28, 2005, she was detailed to a GS-03 position
in the Self-Help
Store for thirty days;
3. In early April 2005, her supervisor initially said that
he would write a letter for her concerning her security
clearance, but later said that he did not have time;
4. On April 26, 2005, her detail to the GS-03 position in
the Self-Help Store
was extended for 120 days;
5. On June 22, 2005, her responsibility as the Alternate
Equipment Custodian for the Automated Data Processing
Equipment (ADPE) Inventory was removed from her, and
given to someone else;
6. On August 1, 2005, a coworker grabbed some Enlisted
Performance Reports (EPRs) out of the complainant's
hands, and told the complainant that the complainant was no
longer responsible for EPRs;
7. On August 2, 2005, her duties were changed;
8. On August 8, 2005, she was reassigned to the Operations
Flight; and
9. On October 20, 2005, she was notified that her
Government-wide Purchase Card (GPC) account was closed.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b).
In its decision, the agency found that complainant's supervisor provided
legitimate reasons for issuing discipline to complainant as described in
claim (1). Specifically, the agency found that complainant's supervisor
(S1) stated that complainant failed to obey his directions to process
travel orders on August 3, 2005. When asked about the incident,
complainant admitted that she had refused to process the travel orders.
The agency found no evidence that S1's decision to issue the letter was
discriminatory.
With respect to claim (2), the agency found that complainant and her
co-worker (E1) disagreed over complainant's duties and the interaction
between the two employees. The agency noted that complainant felt that
E1 tried to assign work to complainant and otherwise review complainant's
work, which oversight complainant resented. The agency noted that after
an argument between complainant and E1, E1 reported to her supervisor (S2)
that E1 felt afraid of complainant because complainant had threatened her.
S2 reported the threats to agency security and ultimately, complainant was
detained by a security officer, though complainant denied ever threatening
E1. Complainant stated that it was E1 who threatened complainant.1
Additionally, complainant's use of her Government Purchase Card (GPC)
prompted an investigation into complainant's personal debts and training
expenses. Complainant was accused of charging training costs to her GPC,
which training was not approved by S1. Complainant was asked to repay
the government for the unauthorized training.
As a result of the two incidents (the threats to E1 and unauthorized use
of her GPC), complainant received a 14-day suspension from the agency.
The agency observed that complainant responded to the agency's charges
contained in the notice of proposed suspension. Therein, complainant
stated that E1 made up the threats she attributed to complainant.
Complainant also claimed that she had been approved by S1 to attend the
training she charged to her GPC. The agency noted that S1 stated he
had approved only two of the courses complainant attended. Complainant
further argued that suspension was too harsh a penalty for the first-time
offenses with which she had been charged in the proposal. The agency
found that complainant's statements and that of E1 and S1 indicated that
complainant resented E1's treatment of her as a subordinate employee,
which, the agency found, supported E1's account of the alleged threats.
Similarly, the agency found that the nature of the training complainant
attended, when compared to complainant's job description supports
S1's statement that he only approved some of the courses complainant
asked to take and charged to her GPC. The agency found no evidence
that complainant's race played any role in S1's decision to suspend
complainant for 14 days.
With respect to complainant's overall claim of harassment, the agency
closely examined each of the incidents described in complainant's
complaint, together with the events described in claims (1), (2), and (3).
The agency found that for those incidents that did occur (incidents (1),
(2), (4), (5), (7), and (9)), the agency found that agency management
provided legitimate, non-discriminatory reasons for its actions based
upon the agency's need to assign work and enforce workplace rules.
The agency found nothing in the record indicated that complainant's
race in any manner precipitated the events. For example, complainant's
access to sensitive information was removed during the time she was
under investigation for unauthorized charges to her GPC and for unpaid
personal debts. The agency opened a security investigation file (SIF)
and complainant's computer access was suspended (and complainant was
detailed to another position) until the SIF was resolved.
The agency found no evidence regarding other allegations. For example,
the agency found that S1 and S2 denied offering to write letters for
complainant (incident (3)). Additionally, the agency found that
incidents (6) and (8), occurred, but only in part. With respect to
incident (6), the agency found that E1 confirmed that complainant was not
informed by her supervisor that some office duties had been realigned and
so, E1, though a co-worker and not complainant's supervisor, initially
informed complainant that complainant was no longer responsible for
EPRs. The agency found evidence that, as complainant described, she
was moved from her position to Operations Flight, but the agency found
that because complainant continued to perform duties consistent with her
position description, she was not officially detailed to that assignment.
Accordingly, the agency concluded that these incidents occurred, but
only partially as complainant alleged.
Overall, the agency found that the incidents described in complainant's
complaint were neither severe or pervasive to state a claim of harassment
based on her race. The agency's final decision concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
On appeal, complainant restates her responses to the agency's actions and
explains errors and inconsistencies in the statements of S1, S2 and E1,
as she did to the agency during the investigation of her complaint.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) she is a member of a
statutorily protected class; (2) she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
In the instant case, we find no dispute between complainant and the
agency that E1, S1, S2 and complainant did not share a congenial work
relationship during the relevant times identified in the complainant's
complaint. We do not find, however, that complainant has presented
sufficient evidence to establish a connection between her race and the
events described in claims (1), (2), and (3). We further concur with
the agency that the incidents described in complainant's complaint,
were insufficient to establish harassment based on complainant's race.
CONCLUSION
After a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 15, 2010
__________________
Date
1 The record shows that complainant was never prosecuted for the alleged
threats against E1.
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0120073797
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073797