01996759
09-26-2001
Carlotta A. Jones, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Carlotta A. Jones v. Department of the Army
01996759
September 26, 2001
.
Carlotta A. Jones,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01996759
Agency No. BQECFO9703H0070
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
dated July 19, 1999, finding that it was in compliance with the terms of
the July 15, 1996, settlement agreement into which the parties entered
and that it had not subjected her to discrimination based on reprisal
(prior EEO activity under Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.) See C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement contained, in pertinent part, the following
provision:
The [agency] agrees to have the complainant work for the Chief, Personnel
Affairs Branch, 39th AG Bn, Training Brigade, effective 15 July 1996.
Upon the departure of the encumbent [sic] of the position of Chief,
Personnel Affairs Branch the organization will reassess staffing of
the position.
The record reveals that during the relevant time, complainant was employed
as a GS-204-04 Military Personnel Status Clerk, in the Personnel Affairs
Branch at Fort McClellan (Activity) in Alabama. The record also reveals
that following complainant's pursuit of the EEO complaint process
(Complaint No. 9607G0410), complainant and the agency entered into a
Negotiated Settlement Agreement on July 15, 1996.
By letter to the agency dated September 9, 1996, complainant requested
that the agency accept her complaint of noncompliance of the settlement
agreement and requested that Complaint No. 9607G0410 be reinstated.
The record reflects that complainant initiated contact with an EEO
counselor on September 18, 1996, claiming that she had been subjected to
reprisal because the agency was not in compliance with the settlement
agreement because she continued to be harassed by her co-worker (CW1).
Specifically, complainant claimed that CW1 harasses her by telling her
what to do; calling her a liar; and absenting herself from the work site
during heavy workloads.
On February 26, 1997, complainant filed a formal complaint alleging that
she was the victim of unlawful employment discrimination on the basis
of reprisal. On March 10, 1997, the agency issued its FAD dismissing
the complaint on the grounds that it addressed the same claims raised
in complainant's previously filed complaint which had been the subject
of the settlement agreement of July 15, 1996. In our earlier decision,
we reversed the agency's dismissal and remanded the case to the agency
for an investigation of the issues raised in complainant's complaint.
Jones v. Department of the Army, EEOC Appeal No. 01973655 (January 28,
1998).
In its August 19, 1999, FAD, the agency found no reprisal discrimination.
The agency noted that complainant failed to establish a prima facie case
of reprisal because she did not show that she had been treated unfairly
as a result of participating in prior protected activity. It is from
this decision that complainant appeals.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Complainant can 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 Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her 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.<1>
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
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, the settlement agreement provides that complainant
works for the Chief, Personnel Affairs Branch. Complainant claims that
CW1 continues to harass her and the agency, therefore is not in compliance
with the settlement agreement. The record reflects that complainant's
supervisor (S1) has met with complainant on more than one occasion to
listen to her concerns. S1 addressed these concerns through his chain
of command who, in turn, provided feedback regarding their attempts to
alleviate the conflict between complainant and CW1. The record evidence
also shows that the agency relocated CW1 to a different room away from
complainant. Although CW1 provided quality control, any errors that
she noted were recorded and given directly to management to prevent any
interaction with complainant. Under these circumstances, we find that
the agency is in compliance with the settlement agreement.
We also find that complainant has not established a prima facie case of
reprisal discrimination. The record shows that complainant engaged in
protected activity and that her supervisors were aware of this activity.
Other than the conflict with CW1, complainant does not present any
evidence that she was subjected to adverse treatment. In point of fact,
the record reflects that complainant stated that she has not experienced
any adverse action from management.
We further find that complainant has not presented sufficient evidence
to show that she was subjected to harassment. Complainant asserts that
CW1 acts like she is her supervisor and she refuses to assist with the
workload when it is heavy. Complainant also claimed that CW1 finds
fault with her work. The record evidence shows however, that CW1's job
duties required that she engage in quality control. Thus, it was CW1's
responsibility to make certain the documents were complete and accurate.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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, 2001
__________________
Date
1 Under present Commission policy, claimed retaliatory actions which can
be challenged are not restricted to those which affect a term, condition,
or privilege of employment. Instead, a complainant is protected from any
discrimination which is reasonably likely to deter protected EEO activity.
See EEOC Compliance Manual Section 8, �Retaliation;� No. 915.003 (May 20,
1998), p. 8-15.