05980582
11-17-2000
Bettie J. Conley, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Bettie J. Conley v. Department of the Navy
05980582
November 17, 2000
.
Bettie J. Conley,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Request No. 05980582
Appeal No. 01963819
Agency No. 94-49941-007
Hearing No. 150-95-8030X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Bettie
J. Conley v. Department of the Navy, EEOC Appeal No. 01963819 (February
26, 1998).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In her original complaint, complainant alleged that she was discriminated
against on the basis of reprisal for filing prior EEO complaints when:
(1) she was subjected to continuous harassment by the outgoing Deputy
Director (DD-1) on March 1, 1994, during the transition of the Affirmative
Employment Program (AEP) to the incoming Deputy Director (DD-2);
(2) the Complaints Manager (CM) had the EEO Counselor's Report on a prior
complaint dealing with complainant's nonpromotion changed to add the
promotion of DD-2, who was of the same race as complainant, even though
this promotion took place took place after the counseling period; and
(3) the Deputy EEO Officer (DEO) announced in a March 1994 EEO Newsletter
that the EEO Office was being relocated and named everyone in the Office
but complainant.
In her Recommended Decision (RD), the EEOC Administrative Judge (AJ) found
that complainant failed to prove, by a preponderance of the evidence,
that the above incidents were sufficiently severe and pervasive to
constitute discriminatory harassment and so trigger a Title VII violation.
The agency adopted the AJ's RD as its final decision (FAD) and on appeal,
we affirmed the FAD.
In her request, complainant includes a statement from DD-2 that at the
transition meeting there was �tension� among complainant, complainant's
assistant, and DD-1. Complainant also asserted that the attitude
of both DD-1 and DD-2 concerning the issue of work assignments she
gave to her assistant or the lack thereof was that complainant was
the�villain.� Complainant further contended that the addition made
to the EEO Counselor's Report of her prior nonpromotion complaint and
permitting DD-1 to respond to her allegations in the Counselor's Report
of her present complaint violated EEOC Regulations.
In its brief opposing complainant's Request for Reconsideration, the
agency contends that the request does not provide material evidence that
was not readily available when the appeal decision was issued, and does
not demonstrate that the Commission erroneously interpreted a material
fact or law, or that the decision was of such exceptional nature as to
have substantial precedential implications.
In determining whether the above three incidents constituted harassment
based on reprisal, the Commission notes that factors to consider are the
frequency of the alleged discriminatory conduct, its severity, whether
it is physically threatening or humiliating, and if it unreasonably
interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
The Supreme Court stated: �Conduct that is not severe or pervasive enough
to create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive � is beyond Title VII's
purview.� Harris, at 22.
In this regard, we note the AJ's finding that complainant's allegation
that DD-1 expressed continuous anger toward her during the transition
meeting was unsupported by the record. This, to the contrary, revealed
that DD-1 was very quiet and that it was complainant's assistant who
expressed the anger. We note, too, the statements that there was tension
among the parties and that complainant felt that DD-1 and DD-2 considered
her a villain is not conduct that is severe enough or frequent enough,
lasting through only one meeting, to create an objectively hostile work
environment under Harris, supra.
As to complainant's contention that the additions to the Counselor's
Reports of her two complaints by management officials constituted a
violation of Commission Regulations, we note that the EEO Federal Sector
Complaints Processing Manual expressly provides that Counselors should
interview witnesses who have direct knowledge of a particular situation in
order to attempt informal resolution of a complaint. See EEO Management
Directive 110, Appendix A (November 9, 1999). Thus, the Counselor's
interview with DD-1 and the inclusion of the latter's testimony in the
Counselor's Report did not violate Commission Regulations but rather
conformed to them. In regard to the addition of the promotion of DD-2
to the Counselor's Report of the prior complaint, we agree with the AJ
that if it was irrelevant, complainant could have so testified but chose
not to do and that in any case, this incident was not severe enough or
pervasive enough to constitute harassment in violation of Title VII.
Alternatively, even if this complaint were analyzed as alleging disparate
treatment based on reprisal, the incidents cited do not satisfy the
standard of being �reasonably likely to deter the charging party or
others from engaging in protected activity.� EEOC Compliance Manual,
Section 8 (Retaliation) at 8-13 - 8-14 (May 20, 1998).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission therefore finds
that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b),
and it is the decision of the Commission to deny the request.
The decision in EEOC Appeal No. 01963819 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
November 17, 2000
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.