Deborah Gudger, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 13, 2001
01980054 (E.E.O.C. Jun. 13, 2001)

01980054

06-13-2001

Deborah Gudger, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Deborah Gudger v. Department of the Army

01980054

June 13, 2001

.

Deborah Gudger,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01980054

Agency No. COL-95-AR-171-E

Hearing No. 100-96-7447X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) 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.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleges she was discriminated against on the bases of race (black) and

reprisal (opposition activity)<1> when she was subjected to a hostile

work environment which led to her discharge during her probationary

period on October 1, 1994, for misconduct. For the following reasons,

the Commission affirms the agency's final decision.

The record reveals that complainant, a Telephone Operator, GS-282-4,

at the agency's Defense Telecommunication Service in Washington, D.C.,

filed a formal EEO complaint with the agency on November 3, 1994,

alleging that the agency had discriminated against her as referenced

above. 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 as to the discharge but did find that

a hostile work environment existed within complainant's workplace.

As to the discharge claim, the AJ concluded that complainant failed

to establish a prima facie case of race discrimination and retaliation

because she failed to show that a comparative employee outside of her

protected group was treated differently. Assuming that a prima facie case

had been shown, the AJ concluded that the agency articulated legitimate,

nondiscriminatory reasons for its action. Complainant testified at the

hearing that she would arrive late for work, displayed angry behavior,

took annual leave without prior approval, used the phone for personal

calls, and would not follow proper procedures and directions given

by her supervisors. See Hearing Transcript, pp. 53-58. The First

Line Supervisor (FL Supervisor, black) testified that complainant was

counseled on numerous occasions based on her excessive absenteeism

and infractions committed at work. Accordingly, the AJ found that

the record supported the agency's reason for discharging complainant.

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 and/or retaliation. In reaching this conclusion, the

AJ determined that although SL Supervisor played favoritism with some

of her employees, it was based on the favors the employees did for her

rather than the race of the employees.

As to complainant's claim of a hostile work environment, the AJ concluded

that the agency tolerated a racially charged environment. The AJ found

that Second Line Supervisor (SL Supervisor, black) would use a racially

charged slur and that the record was �replete with evidence that [SL

Supervisor] used this racial term in her every day speech.� AJ's Findings

and Conclusions, p. 3. Further, the AJ determined that the agency failed

to take any corrective action to end the offensive environment created by

the SL Supervisor. Accordingly, the AJ found that the agency was liable

for maintaining a racially charged, hostile work environment. As to the

remedy, the AJ ordered the agency to post a notification of the finding,

to counsel the SL Supervisor regarding her use of the racial epithet,

and to train her in non-discriminatory principles within Title VII.

The agency's final decision implemented the AJ's decision. As to the

hostile work environment, the agency found that the evidence revealed

that the SL Supervisor regularly used a racial slur which was unwelcome

and unacceptable. On appeal, complainant makes no new contentions,

and the agency 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).

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

demonstrated that she was subjected to a hostile work environment based

upon her race. The Commission, however, also finds that complainant

failed to show that the agency's decision to discharge her for misconduct

was in retaliation or was motivated by discriminatory animus toward

complainant's race. We discern no basis to disturb the AJ's findings.

The Commission notes, however, that the AJ's recommended corrective

action fails to provide a complete remedy as to the finding of a hostile

work environment. The Commission finds that although complainant did not

specifically state on her formal complaint that she requested compensatory

damages, in her testimony given at the hearing, complainant stated that

the racial slurs caused her stress and anxiety attacks. See Hearing

Transcript, p. 39. Accordingly, the Commission finds that the agency

shall refer the case to an EEOC AJ for an examination of complainant's

claim for compensatory damages as they relate to the hostile work

environment. Furthermore, complainant has been represented by counsel,

however, she was not awarded attorneys' fees and costs. Therefore, we

find that the AJ shall determine the amount that should be awarded for

attorneys fees and costs as to the claim of a hostile work environment.

After a careful review of the record, including arguments and evidence

not specifically discussed in this decision, the Commission AFFIRMS the

agency's final order adopting the AJ's finding of discrimination and

directs the agency to take corrective action in accordance with this

decision and the modified ORDER below.

ORDER

The agency is ORDERED to take the following action within sixty (60)

days of the date this decision becomes final:

The agency shall take appropriate preventative steps to ensure that no

employee is subjected to a hostile work environment based on race and

to ensure that appropriate steps are taken immediately after management

is notified of any such environment.

The agency is directed to conduct training in EEO sensitivity with

emphasis on Title VII and hostile work environment for the SL Supervisor

who was found to have discriminated against complainant. The agency

shall address the SL Supervisor's responsibilities with respect to

eliminating discrimination in the workplace.

The agency shall consider taking disciplinary action against the

SL Supervisor identified as being responsible for the hostile work

environment against complainant. The agency shall report its decision

as to whether or not it will take disciplinary action to the Compliance

Officer at the address set forth below. If the agency decides to take

disciplinary action, it shall identify the action taken. If the agency

decides not to take disciplinary action, it shall set forth the reason(s)

for its decision not to impose discipline.

The issues of compensatory damages and attorneys' fees are REMANDED to

the Hearings Unit of the appropriate EEOC District Office. The agency

is directed to submit a copy of the complaint file to the EEOC Hearings

Unit within fifteen (15) calendar days of the date this decision becomes

final. The agency shall provide written notification to the Compliance

Officer at the address set forth below that the complaint file has been

transmitted to the Hearings Unit. Thereafter, the Administrative Judge

must be assigned in an expeditious manner to further process the issue

of compensatory damages in accordance with the regulations.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant;

calculation of other pecuniary damages; and evidence that the corrective

action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Defense Telecommunication Service

facility copies of the attached notice. Copies of the notice, after

being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

June 13, 2001

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission, dated , which found that a violation

of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The Department of the Army, supports and will comply with such Federal law

and will not take action against individuals because they have exercised

their rights under law.

The Department of the Army has been ordered to remedy an employee affected

by the Commission's finding that she was subjected to a hostile work

environment because of her race. As a remedy for the discrimination,

the Department of the Army was ordered, among other things, to provide

training and to consider discipline for the agency officials who created

the hostile work environment and permitted it to exist. The Department of

the Army will ensure that officials responsible for personnel decisions

and terms and conditions of employment will abide by the requirements

of all Federal equal employment opportunity laws.

The Department of the Army will not in any manner restrain, interfere,

coerce, or retaliate against any individual who exercises his or her

right to oppose practices made unlawful by, or who participates in

proceedings pursuant to, Federal equal employment opportunity law.

________________________

Date Posted: ________________

Posting Expires: _____________

1The record indicates that complainant complained to management of her

Second Level Supervisor's (SL Supervisor) repeated use of a racially

charged expletive.