01A02561
04-05-2002
Deborah Atkins, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Deborah Atkins v. Department of the Navy
01A02561
April 5, 2002
.
Deborah Atkins,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A02561
Agency Nos. 9563394007,
9663394004
Hearing Nos. 340-98-3064X,
340-98-3065X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaints 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
In her first complaint (DON No. 95-63394-007), complainant alleges
that she was discriminated against on the bases of her race (Black), sex
(female), and reprisal (filing prior EEO complaints) when, between October
1994 and September 1995, she was subjected to continuing harassment by
her first-line supervisor (S1), when:
S1 publicly berated complainant in front of her co-workers, cancelled
courses she had scheduled without notification, and questioned her
whereabouts in the office;<1> and,
On May 4, 1994, she was denied continued participation in the Flexi-place
program.
In her second complaint (DON No. 63394-004), complainant alleges that
she was discriminated against on the bases of her race (Black), sex
(female), and reprisal (filing prior EEO complaints under Title VII) when:
S1 harassed her until approximately March 12, 1996;<2> and,
On October 18, 1995, she was given a Letter of Reprimand for
insubordination.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that at all relevant times, complainant was employed
as an Employee Development Specialist (EDS), GS-12, in the Career
Development Division of the Business Operations Directorate in Port
Hueneme, California. Believing herself to be a victim of discrimination
and reprisal, she filed two formal EEO complaints with the agency,
dated September 26, 1995 and April 22, 1996, respectively, alleging
that the agency had discriminated against her as referenced above.
The two complaints were subsequently consolidated for joint processing.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of sex discrimination. Specifically, the AJ found that complainant
failed to demonstrate that similarly situated employees, not in her
protected classes, were treated differently under similar circumstances.
In so finding, the AJ noted that complainant herself testified that S1
treated other female employees better than herself. The AJ concluded,
however, that complainant had established a prima facie case of race
discrimination because similarly-situated employees, not in her protected
class, were treated more favorably. The AJ noted that, nevertheless,
complainant failed to proffer any evidence that she had been subjected to
any verbal or physical conduct that was racial in nature. The AJ also
concluded that complainant established a prima facie case of reprisal.
Specifically, she found that complainant was the only EDS with prior EEO
activity, that S1 was aware of such activity, and that the challenged
actions occurred only after complainant filed her EEO complaints.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and that S1 testified credibly
that the actions did not occur, or were not as presented by complainant.
For instance, the AJ made the following findings regarding some of the
examples cited by complainant of harassment by S1:
There was no evidence that S1 publicly berated complainant; and,
S1 began closely monitoring complainant's time and attendance, both on and
off-site only after S1 noticed that her sign-in sheets did not precisely
reflect her actual time, and complainant refused to give explanations
when S1 questioned her; and,
Complainant's work was reassigned only when complainant was absent, and
S1 never cancelled or rescheduled her courses without notifying her; and,
S1 did not place the vacancy announcements on her desk in order to coerce
her into leaving. He simply circulated the announcements among employees
from time to time; and,
S1 wrote a memorandum regarding complainant's failure to follow up on
the preparation of a DD-1556 form so that a similar oversight would not
recur in the future; and,
As to the selection of office space, S1 made the initial selection
of office spaces, however, complainant was then permitted to select a
different space; and,
S1 was directed to end complainant's Flexi-place because she was not
following the requirements of the agreements; and,
S1 communicated with all employees by electronic mail, not just
complainant. However, he also preferred to use this method with
complainant because their in-person meetings were strained; and,
S1 gave complainant a Letter of Reprimand because of her refusal to meet
with him; and,
Complainant received a written mid-year review, while her co-workers
received oral reviews because complainant was on extended leave.
Additionally, although complainant's review had negative comments,
so did the reviews of other employees; and,
Complainant and S1 both yelled at each other on several occasions.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or reprisal. In reaching this conclusion, the AJ opined
that S1 was fanatical about time, and a micromanager. Additionally,
the critical event that led to the worsening of the relationship between
S1 and complainant was not complainant's filing of an EEO complaint, but
the opening of her fitness center in June 1995. She further found that
complainant and S1 had a strained relationship, but that complainant was
also culpable in creating and perpetuating this poor relationship. The
agency's final decision implemented the AJ's decision.
On appeal, complainant, through her attorney, restates arguments
previously made at the hearing.<3> In response, the agency restates
the position it took in its FAD, and requests that we affirm its final
decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on her membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). We find that S1 did subject
complainant to an unpleasant or hostile working environment, however, we
also find that S1 interacted unpleasantly with several other employees who
disliked his management style. There is substantial evidence of record
in support of the AJ's finding that S1's treatment of complainant was not
attributable to an animus toward her because of her race, sex or prior EEO
activity. Accordingly, we find that complainant failed to establish that
management's actions towards complainant were based on either her sex,
race or her prior EEO activity. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's sex or race. We discern no
basis to disturb the AJ's decision. 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 agency's final decision.
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
April 5, 2002
__________________
Date
1 Complainant also cited several other
examples of alleged harassment in her complaint, including S1's close
monitoring of her time and attendance, S1's reassignment of her work
without informing her, S1's placement of vacancy announcements on her desk
to coerce her into leaving, her letter of reprimand, her poor mid-year
evaluation, and the fact that she was not permitted to select her own
office space.
2 Complainant cited several examples of such harassment in her complaint,
including the allegation that S1 communicated with her only through
e-mail, that S1 initiated an investigation of her attendance, and that
S1 mailed her mid-year evaluation to her, while the other specialists
received oral evaluations.
3 In complainant's appeal, she also listed additional incidents of
harassment. Complainant is advised, however, that if she wishes to
pursue those additional incidents, she must initiate contact with an
EEO counselor within 15 days of the date she receives this decision.
The agency is advised that if complainant initiates such contact within
the 15 day time period, the date complainant raised these issues with the
agency shall be deemed to be the date of initial EEO contact unless he has
already initiated contact with an EEO counselor regarding these issues,
in which case the earlier date should serve as the EEO counselor contact
date. Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201
(January 16, 1998).