01991031
09-25-2001
Donna J. Humbard, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Donna J. Humbard v. Department of the Navy
01991031
September 25, 2001
.
Donna J. Humbard,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01991031
Agency Nos. 96-00244-007; 97-00244-009
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 alleged that she was discriminated
against on the bases of race (Caucasian), color (white) and reprisal
(prior EEO activity under Title VII) when:
on May 9, 1996, she received two electronic mail (email) messages from
her supervisor (S1) that implied that she was insubordinate;
on May 22, 1996, S1 held a meeting with her to discuss the email
messages;
on May 28 and 29, 1996, S1 gave her written correspondence that required
her to obtain Civilian Employee Assistance Program (CEAP) counseling;
on June 4, 1996, she felt she was being forced by S1 to meet with a
CEAP counselor and she was not told that it was not mandatory; and,
in May 1996, S1 failed to advertise a vacancy for an EEO Assistant,
GS-5 position.
The record reveals that during the relevant time, complainant was
employed as a Secretary, GS-318-05, in the Work Force Diversity/EEO
Division at the agency's Fleet and Industrial Supply Center (Activity)
in San Diego, California. Believing she was discriminated against,
complainant sought EEO counseling and subsequently filed a formal
complaint on August 23, 1996. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to show that
she had been subjected to race, color, and reprisal discrimination.
On appeal, complainant reiterates her contentions. The agency requests
that we affirm its FAD.
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). 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 256.
Complainant may establish a prima facie case of race discrimination
by showing: (1) she is a member of a protected class, and (2) she was
accorded less favorable treatment from that given to persons otherwise
similarly situated. Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Complainant may also set forth evidence of
acts from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576
(1978).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No.01A00340
(September 26, 2000). The Commission policy on retaliation prohibits
any adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging in
a protected activity. See EEOC Compliance Manual Section 8, �Retaliation�
No. 915.003 at pp. 8-13 (may 20, 1998).
After a careful review of the record, the Commission finds that
complainant failed to establish a prima facie case of race and color
discrimination. Although complainant is a member of a protected class by
virtue of her race, she has not shown that any of the agency's actions
were motivated by discriminatory animus. In addition, complainant
failed to establish that she was treated less favorably than similarly
situated employees. In point of fact, the record reflects that S1 also
referred a Black employee to CEAP counseling.
The Commission also finds that complainant failed to establish a prima
facie case of reprisal discrimination. Specifically, the record reflects
that on May 28, 1996, complainant informed S1 that she intended to file
an EEO complaint. The record also reflects that S1 provided complainant
with the name of an EEO counselor. On June 17, 1996, complainant engaged
in protected activity. Subsequently, the agency reassigned an employee
who had requested a transfer to a position in the Activity's personnel
division. Complainant alleges that this amounted to adverse treatment
because the position was not advertised; thus, she could not apply for
the vacancy.
The record shows that S1 was reluctant to permit the reassignment
but after several conversations with one of the personnel officers,
and an interview with the selectee, decided to fill the position
noncompetitively. The record evidence also reflects that the selectee was
a qualified reassignment eligible and that the noncompetitive transfer
was not improper. Moreover, complainant did not present evidence that
anyone was aware of the fact that she was interested in the EEO Assistant
position. Consequently, we find that complainant did not establish that
she was subjected to adverse treatment.
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
September 25, 2001
__________________
Date