01985703
07-26-2000
Delores E. Dean, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Delores E. Dean v. Department of Health and Human Services
01985703
July 26, 2000
Delores E. Dean, )
Complainant, )
) Appeal No. 01985703
v. ) Agency No. IHS14894
)
Donna E. Shalala, )
Secretary, )
Department of Health and Human Services, )
Agency. )
)
DECISION
Complainant timely appealed the agency's final decision concerning her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The appeal is accepted.
Complainant worked as a secretary in the Public Health Service, Indian
Health Service, Office of Health Program Research and Development (OHPRD).
She contacted an EEO counselor alleging that her immediate supervisor
sexually harassed her by forcing her to view obscene drawings that
he had created on a computer. According to the counselor's report,
the incident occurred on February 17, 1993. She first contacted the
counselor on February 26, 1993. As a result of the incident, the
associate director of the OHPRD immediately arranged for her to be
detailed to the Environmental Health Office (EHO). That detail took
effect on April 1, 1993. She remained in the detail until November
of that year. In a memorandum dated November 17, 1993, the associate
director informed the associate EHO director that complainant's detail
to EHO would not extend beyond November 28th. Complainant thereafter
filed a complaint in which she alleged that the associate director
discriminated against her on the basis of gender and retaliated against
her for having contacted an EEO counselor back in February by not
extending her detail.<2> The agency processed her complaint and found
no discrimination. Complainant thereafter appealed.
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). She must
initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation
is pretextual. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995).
Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 411 U.S. at 804 n.14. Where denial
of employment conditions or benefits is at issue, complainant may
establish a prima facie case by demonstrating that: she belongs to a
statutorily protected class; her employment situation is comparable
to those of employees outside of her protected class; and she was
denied conditions or benefits of employment afforded those employees.
Orr v. Tennessee Valley Authority, EEOC Request No. 05930311 (March 11,
1994); Thompkins v. Morris Brown College, 752 F.2d 558, 562 n.7 (11th
Cir. 1985). Where reprisal is at issue, complainant may establish a
prima facie case by showing that she engaged in protected EEO activity,
that individuals named in complaint knew of that activity, and that
she was subjected to an adverse action at such a time or in such
a manner as to support a causal connection between the two events.
Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,
1994); Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318 (D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976).
We find, contrary to the agency, that complainant established a prima
facie case of both sex discrimination and reprisal. It is not necessary
for complainant to show that comparative employees outside of her
protected group were similarly situated to her in order to establish a
prima facie case. See O'Connor v. Consolidated Coin Caters Corp., 507
U.S. 308, 312-13 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).
In this case, it would be enough to show that the associate director
extended the details of male employees but did not extend her detail.
The associate director admitted in her affidavit that she had extended
the details of three male employees. Ex. 10, p. 5. This is sufficient to
establish a prima facie case of sex discrimination. As for her reprisal
claim, we agree with the agency that complainant had established a prima
facie case of unlawful retaliation.
When asked by the EEO investigator why she refused to extend complainant's
detail to EHO beyond November 1993, the associate director replied that
the workload in complainant's regular duty area required her presence
there. Ex. 10, pp. 2-4. This reason is ostensibly legitimate and
nondiscriminatory, and is therefore sufficient to rebut the inference
of discrimination and reprisal created by the prima facie case.
Complainant must now show that the associate director's explanation for
not extending her detail is a pretext for sex discrimination and reprisal.
While disbelief of the agency's articulated reasons does not compel a
finding of discrimination as a matter of law, disbelief of the reasons put
forward by the agency, together with the elements of the prima facie case,
may suffice to show intentional discrimination. Hicks, 509 U.S. at 511;
EEOC Enforcement Guidance on St. Mary's Honor Center v. Hicks, EEOC Notice
No. 915.002 (April 12, 1994); Huerta v. Department of the Air Force, EEOC
Request No. 05930802 (April 1, 1994). Complainant should bear in mind,
however, that the agency generally has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Vanek
v. Department of the Treasury, EEOC Request No. 05940906 (January 16,
1997); Kohlmeyer v. Department of the Air Force, EEOC Request No. 05960038
(August 8, 1996); Burdine, 450 U.S. at 259. The associate director
stated in her affidavit that she denied detail extensions of two other
female employees. Ex. 10, p. 4. Moreover, the three male employees
whose details were extended were in different jobs than complainant.
Ex. 13. Complainant has not shown that the associate director deviated
from the agency's normal policies or practices in a way that suggests
the existence of an unlawful motivation. See Monroe v. Department of
the Navy, EEOC Request No. 05950248 (August 8, 1996) (deviations from
standard procedures without explanation or justification sufficient to
support inference of pretext).
A question remains as to why the associate director would reassign
complainant to work under a supervisor that she accused of sexual
harassment. The record does indicate that the supervisor had drawn
pictures of nude women, landscapes, and other pictures on his computer,
that complainant had observed those drawings on February 17, 1993,
and that complainant was offended by what she had seen. While the
supervisor's behavior was inappropriate, the record does not disclose
any other incidents, which would probably preclude a finding of sexual
harassment. See Michele Hayes v. United States Postal Service, EEOC
Request No. 05980372 (June 17, 1999); Policy Guidance On Current Issues
of Sexual Harassment, EEOC Notice No. N-915-050 at 16 (March 19, 1990)
(unless the conduct complained of is very severe, a single incident
will not be regarded as sexual harassment). Thus, there is nothing in
the record to indicate that the associate director acted improperly in
returning complainant to her previous position.
After a careful review of the record, including complainant's contentions
on appeal, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final decision because the preponderance
of the evidence does not establish that discrimination had occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
07-26-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date ________________________
1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2In its final decision, the agency erroneously characterized the February
1993 sexual harassment incident as a separate issue. This is incorrect.
The only issue that the agency accepted and processed was the denial
of the detail extension. Exhibit (Ex.) 3. Complainant did not file a
sexual harassment complaint because the agency took corrective measures
in reassigning her.