01991864
11-21-2000
Bettie J. Conley, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Bettie J. Conley v. Department of the Navy
01991864
November 21, 2000
.
Bettie J. Conley,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01991864
Agency No. 94-499941-005
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of race (Black), color (black), and reprisal
(prior EEO complaints) when:
(1) she was harassed on December 3, 1993, by her supervisor, the Deputy
Director (DD), when she went through her office and reorganized her work,
causing confusion and chaos, and making complainant look incompetent
to her peers and subordinates;
DD treated complainant like a kindergarten child in front of her
subordinate, and accused her of being antagonistic during a meeting
in which she told her that she had not accomplished anything since she
was reassigned in September 1993, knowing that complainant had not been
provided adequate resources and had been out sick; and
DD also required complainant to work without a position description
and with inadequate resources in an attempt to discredit her.<2>
The record reveals that during the relevant time, complainant was
employed as an EEO Specialist, GS-230-12, at the agency's Naval Air
Station facility, Jacksonville, Florida. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on February 25, 1994. 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. Although complainant initially requested
a hearing, she later requested that the agency issue a final decision
without a hearing.
In its FAD, the agency concluded that while complainant had established
a prima facie case of reprisal, the agency articulated legitimate,
nondiscriminatory reasons for its actions in all three of the above
issues, which complainant was not able to show were a pretext for
discrimination. On appeal, complainant submits additional documents
in an effort to show that she was given inadequate resources to perform
her job. She also notes that the agency wanted her to do her own position
description. In contrast, complainant and the DD worked on the re-write
of a position description for a White Labor Relations Specialist so that
it would be in place when the latter was reassigned to the office from
which complainant was moved. The agency requests that we affirm the FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that while complainant established a
prima facie case of reprisal discrimination, complainant then failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note the following concerning the above three issues:
Issue (1). The DD testified that she and complainant were the only
employees at work on December 3, 1993, as complainant had to finish an
overdue report for top management. When complainant told her that she
did not need any help with the report, DD then spent the time sorting
through print-outs to familiarize herself with complainant's work.
After complainant finished the report, DD asked her to educate her
about her work, and tell her about the documents in her in-box, which
they then stacked by category. During the more than three hours the
DD spent with complainant, she observed that the complainant appeared
normal and she did not detect any anger or frustration on the latter's
part about the process they were going through.
Issue (2). The DD made a simple, hand-written chart to identify the
organizations serviced by complainant as the Manager of the Affirmative
Employment Program and what reports were needed for each of them.
She understood this to be what complainant considered as being treated
like a kindergarten child, and had no recollection of making any comments
that could be construed as accusing complainant of not accomplishing
anything since her re-assignment in September 1993.
Issue (3). The DD explained that because of a reorganization of
the Activity in September 1993, approximately 25 employees were in
need of new position descriptions. The Operations Department Head
(ODH) testified that she provided complainant with a draft position
description during an October 20, 1993 meeting, but that the position
description was not finalized while she was complainant's supervisor
because she never received any input from complainant. She observed
that two of her other employees (both White) also did not have position
descriptions during the time that she supervised complainant. In regard
to complainant's allegedly being given inadequate resources to perform
her job, complainant was not able to cite similarly situated employees
not in her protected groups who were treated more favorably in similar
circumstances
The ODH pointed out to complainant that if her assistant could not do
all the necessary typing, that the ODH's own secretary was available
to help her. The DD noted that complainant was offered help by the
Personnel Director, other EEO specialists, and herself, but that the
complainant replied that she could do the work herself.
Complainant proffered no evidence nor arguments to rebut the above
testimony by responsible management officials. After a careful review
of the record, we find that complainant presented no evidence that any
of the above actions were objectively offensive, abusive or hostile, or
were otherwise taken in order to harass her. In this respect, we note
that while complainant may have found some of the challenged actions
difficult or frustrating, the actions alleged are common workplace
occurrences, and unless it is reasonably established that the actions
were somehow abusive or offensive, and were taken in order to harass
complainant on the basis of any of her protected classes, such everyday
events are not sufficiently severe or pervasive so as to offend the
general sensibility of an individual experiencing such occurrences in
the workplace. See Wolf v. United States Postal Service, EEOC Appeal
No. 01961559 (July 23, 1998). See Also Long v. Veterans Administration,
EEOC Appeal No. 01950169 (August 14, 1997). Therefore, after a careful
review of the record, including arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 21, 2000
Date
1 On 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.
2The Commission previously affirmed the dismissal of two other claims
raised in the complainant. See EEOC Request No. 05950368 (February 2,
1996).