0120103405
12-16-2010
Christine Donaway, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Christine Donaway,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120103405
Agency No. 090023200307
DECISION
On August 11, 2010, Complainant filed an appeal from the Agency's May 17,
2010, 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. The Commission deems the appeal timely and accepts it pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final decision.
ISSUES PRESENTED
On December 30, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American)
and reprisal for prior protected EEO activity when:
1. On November 3, 2008, the Agency docked her pay for working from 1530
to 1830 hours without proper authorization;
2. On November 5, 2008, she learned that she was not selected for
the position of Financial Management Analyst, GS-0501-09, filed under
Certificate number MZ1135578-C-IN19; and
3. From February 2008 through November 2008, she was harassed by an
Agency official.
BACKGROUND
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
At the time of events giving rise to this complaint, Complainant worked as
a Financial Technician at the Agency's Naval Hospital, Naval Air Station
facility in Jacksonville, Florida. Complainant alleges that on November
3, 2008, Complainant notified a co-worker that she would be late for
work due to car trouble and in order to compensate for her late arrival,
Complainant worked later than her earlier schedule. According to the
Agency, Complainant left a message on the voice mail of a co-worker who
was not in the office that day. The record indicates that Complainant's
normal work hours are 700 to 1530, but on November 3, 2008, Complainant
reported to work at 12:15 and did not notify her supervisor of her
arrival.
The record further indicates that Complainant was not selected an
available GS-9 Financial Analyst position with the Agency. Complainant
alleges that she was better qualified for the position because she
worked in the accounting field for many years and had an accounting
degree from a business college. Complainant further argued that she
was better suited for the position because in addition to performing her
accounting duties, she trained other employees, and was named Civilian
of the Quarter in 2007. The Agency maintains that although Complainant
was referred and interviewed for the position, she was not found to be
better suited for the job than the selectee. According to the Agency,
candidate interviews and resumes were weighted and the scores combined.
Complainant's combined interview and resume score was lower than the
other individual selected for the position. The Agency further indicates
that Complainant was not selected for the position because she lacked
the years of relevant experience and education of the selectees.
Complainant claimed that she was subjected to a hostile work environment
from February 2008 to November 14, 2008 when her supervisor singled
her out at meetings and inappropriately criticized her to co-workers.
The record indicates that the Agency immediately engaged an outside
investigator to conduct an investigation into Complainant's allegations
of harassment. The investigation failed to substantiate any specific
incidents of conduct by Complainant's supervisor which created a hostile
work environment.
CONTENTIONS ON APPEAL
Complainant makes no new contentions on appeal regarding the Agency's
finding in this matter that no discrimination occurred.
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 Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at 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). He must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review of the record in this matter, the Commission finds that the
Agency established a legitimate, nondiscriminatory reason for its conduct.
According to the Agency, Complainant was docked pay on November 3,
2008 because she failed to notify her supervisor of her late arrival
and worked longer than her normal schedule without prior approval in
an attempt to make up for her tardiness earlier that day. The record
further reveals that Complainant was not selected for the Financial
Analyst position because she did not possess the relevant experience
and education that the selectees for the position had. Moreover, the
Agency indicates that Complainant's combined interview and resume score
was lower than the others selected to fill the position.
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: 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, 510 U.S. at 23.
Regarding Complainant's hostile work environment claim, the Commission
finds that Complainant has failed to demonstrate that she was subjected
to conduct so severe and pervasive that it altered the conditions
of her employment. Moreover, regarding her claims that she suffered
sleepless nights and headaches as a result of the Agency's conduct, the
Commission notes that claiming compensatory damages does not convert
Complainant's allegations into a justicable claim of hostile work
environment harassment.
Because the Agency articulated legitimate, non-discriminatory reasons
for its actions, Complainant is required by law to show that the reasons
are a pretext for discrimination. The Commission finds that Complainant
has not established that the Agency's articulated reasons for its conduct
in this matter were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, it is the decision
of the Equal Employment Opportunity Commission to affirm the Agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 16, 2010
__________________
Date
2
01-2010-3405
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120103405