01970272
04-04-2000
Dolores DeVillier, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Dolores DeVillier v. Department of the Interior
01970272
April 4, 2000
Dolores DeVillier, )
Complainant, )
) Appeal No. 01970272
v. ) Agency No. FWS-95-054
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination on the
bases of race (Mexican-American), color (Brown), reprisal (prior EEO
activity), and age (forty-seven at the time of the alleged discrimination)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. � 621 et seq.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). For the following reasons, the Commission AFFIRMS
the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
she was discriminated against on the above-referenced bases when: on
May 22, 1995, she received a letter of confirmation; on May 31, 1995,
she was berated by her first-level supervisor in front of co-workers;
and, on May 31, 1995, during a meeting with her third-level supervisor,
she was subjected to belittling and derogatory remarks.
BACKGROUND
Complainant, employed by the agency as an Accounting Technician at the
time of the alleged discrimination, filed a formal complaint on July 25,
1995, in which she raised what has been identified as the issue presented.
The agency accepted the complaint for processing and, at the conclusion
of the investigation, issued a final decision finding discrimination
on the bases of race, color, and reprisal regarding the letter of
confirmation.<2> Regarding the other two incidents (being berated by
her first-level supervisor in front of co-workers and being subjected
to belittling and derogatory remarks by her third-level supervisor),
the agency found no discrimination. This appeal followed.
The evidence of record reveals that, as part of her job duties,
complainant was charged with receiving, analyzing, and classifying various
types of payment documents such as reimbursements and purchase orders
regarding specific contracts to which she was assigned. Additionally,
she was charged with advising field officials, contractors, vendors, and
other government personnel of existing problems and proposed solutions.
One of the contracts to which complainant was assigned became the subject
of a dispute between her and the first-line supervisor. The dispute
concerned the complainant's treatment of the contract as a 14-day payment,
i.e., disseminating payment within 14 days of the invoice receipt date.
In the first-line supervisor's absence, complainant informed her
second-line supervisor that she (complainant) was concerned that the
first-line supervisor's failure to certify the contract for payment could
result in late payment. The complainant also discussed her concern with
the field representative for this particular account.
Upon her return, the first-line supervisor indicated that she did not
appreciate complainant "going over her head" regarding contracts.
And on May 22, 1995, she summoned complainant into her office to
discuss the conversation that she (complainant) had with the field
representative. During this meeting, complainant was informed that the
field representative had contacted the Director of Finance expressing
his concern about the possible late payment. She was also informed that
after speaking with the field representative, the Director of Finance sent
an e-mail to complainant's third-level supervisor concerning whether or
not the contract would be paid on time. On that same day, the first-line
supervisor issued complainant a letter of confirmation concerning her
conversation with the field representative. The purpose of the letter
was two-fold: (1) to confirm that the meeting between the first-line
supervisor and complainant did occur; and (2) to warn complainant that
any future actions of this nature could result in disciplinary action.
A copy of the letter was placed in the first-line supervisor's files.
Approximately one and a half weeks later, complainant was approached by
her first-line supervisor regarding the legality of a 14-day payment
and its acceptance and invoice dates. According to complainant,
the first-line supervisor threw some documents on her (complainant's)
desk and rudely quipped, "This is illegal and has to be addressed."
Complainant stated the first-line supervisor was very rude and totally
unprofessional. She also stated that some of her co-workers heard the
first-line supervisor's statements.
When the complainant tried to explain why she treated the payment as a
14-day, the first-line supervisor would not listen and immediately called
a meeting. During the meeting, the staff was given information regarding
14-day payments. Again, complainant attempted to tell the first-line
supervisor that she was correct in treating the document as a 14-day and
she (the first-line supervisor) abruptly ended the meeting and screamed,
"This is insubordination. . . We are going to see [the Chief, Financial
Services; i.e., complainant's third-line supervisor].<3>
Later that day, complainant was asked to join her first-line supervisor
in a meeting with her third-line supervisor. After indicating that
she wanted a third party present, complainant was provided with a
union representative. During the meeting, complainant explained to the
third-line supervisor that her supervisor had screamed at her in front of
others and had given incorrect information regarding 14-day payments to
other employees, two things that she felt were not appropriate. According
to the complainant, the third-line supervisor's demeanor and attitude was
such that he supported the supervisors. Complainant also explained to
the third-line supervisor that she sat quietly at her desk, did her work,
and did not bother anyone. In reply, the third-line supervisor stated,
"We always know that you're around." The complainant stated that when
she asked him to clarify his statement, he said, "This meeting is over
because we are not getting anywhere."
ANALYSIS AND FINDINGS
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). See, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases); see also, Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(applying McDonnell Douglas to age cases). 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 25.
Letter of Confirmation/Warning
In its final decision, the agency found that complainant was subjected
to discrimination on the bases of race, color, and reprisal when the
letter of confirmation/warning was issued.<4> Presumably, complainant
is not appealing those findings and, as such, those issues will not
be revisited here. The agency also found, however, that complainant
did not prove that she was discriminated against on the basis of age.
The Commission agrees.
As part of complainant's ultimate burden regarding her claim of age
discrimination, she must show that age was a determinative factor
in the discriminatory action. LaMontagne v. American Convenience
Products, Inc., 750 F.ed 1405, 1409 (7th Cir. 1984). In this case,
complainant was subjected to an adverse action (i.e., letter of
confirmation/warning) after conferring with a field representative
regarding a particular account. According to information contained in
the report of investigation, several Account Technicians had contacted
field representatives regarding particular accounts. Of those Account
Technicians, only complainant received a letter of confirmation/warning
for such actions. The technicians that were not disciplined, however,
ranged in age from 37 to 52. Thus, we are not persuaded that age played
a role in the issuance of the letter of confirmation/warning.
Harassment
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
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).
By alleging that she was berated by her first-line supervisor in front
of co-workers and subjected to belittling and derogatory remarks by her
third-line supervisor, complainant is essentially alleging that she was
subjected to a hostile work environment and harassment. To establish a
prima facie case of hostile environment harassment, complainant must show
the existence of four elements: (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.
Complainant contends that on May 31, 1995, her first-line supervisor
walked into her office and slammed some documents on her desk while
stating, "This is illegal and has to be addressed." Complainant also
contends that during a disagreement with her first-line supervisor in
a meeting with co-workers, the first-line supervisor yelled, "This is
insubordination . . . We are going to see [Chief, Financial Services]"
Finally, complainant contends that in a meeting with her third-line
supervisor, he stated that "We always know that you're around."
Regarding these incidents, the Commission finds that they are not
sufficiently severe to trigger a Title VII violation. Instead, the
statements of the alleged discriminating officials are nothing more than
mere offensive utterances.
Additionally, regarding complainant's race and color, we find that
complainant has failed to establish a prima facie case of harassment.
In submitting evidence to support her discrimination claim, complainant
did not show the existence of the third element because information
contained in the evidentiary record illustrates that staff members
outside of complainant's protected groups were subjected to similar
behavior from the first-line supervisor.<5>
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response thereto, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
April 4, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 The Commission notes that, regarding this issue, the agency dismissed
age as a basis.
3 The investigative file indicates that complainant was correct in
handling the document at issue as a 14-day payment and the first-line
supervisor eventually had another staff meeting to clarify her own
instructions.
4 In accordance with the finding of discrimination, the letter of
confirmation/warning was destroyed and expunged from all records;
complainant's performance appraisal for the period ending June 30, 1995
was amended to delete any reference to the May 22, 1995 incident; the
first-line supervisor was provided training in the areas of supervision,
equal opportunity, and diversity; and a notice was posted, in conspicuous
places and for a period of six months, informing employees of prohibited
practices and rights under Title VII. The Commission notes that
complainant did not request compensatory damages.
5 Three sworn statements were provided wherein one account technician
(Caucasian, White, age 49) testified that the first-line supervisor
threw documents at him; another (Hispanic, Red, age 41) testified that
she was yelled at by that same official; and finally, another technician
(Pacific Islander, Brown, age 41) testified that the first-line supervisor
yelled at her, sometimes using profanity.