Edna Jarrett, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 8, 1999
01972337 (E.E.O.C. Apr. 8, 1999)

01972337

04-08-1999

Edna Jarrett, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Edna Jarrett v. Department of the Navy

01972337

April 8, 1999

Edna Jarrett, )

Appellant, )

) Appeal No. 01972337

v. ) Agency No. 94-60259-004

) Hearing No. 340-96-3081X

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

Appellant timely appealed the final decision of the Department of Navy

(agency), concerning her complaint alleging that the agency discriminated

against her in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq. The appeal is accepted by the

Commission in accordance with EEOC Order 960.001.

Appellant filed a formal complaint alleging that she was subjected

to a hostile work environment and disparate treatment on the bases

of her race (Black), color (black), sex (female), and reprisal (prior

EEO participation) when between September, 1993 and December, 1993: (1)

appellant's first-line supervisor (S1) would not allow her to change her

work hours so she could car-pool; (2) S1 would not allow appellant to take

breaks or lunch with co-workers; (3) appellant's replacement supervisor,

R1, stepped over her while she was sorting parts on the ground; and (4)

appellant was watched when she made trips to the bathroom. Following the

agency's investigation of her complaint, appellant requested a hearing

with an administrative judge (AJ). The agency timely submitted a motion

for summary judgment to which appellant timely responded. On November

7, 1996, the AJ issued his recommended decision without a hearing,

pursuant to 29 C.F.R. � 1614.109(e)(1), and found no discrimination.

The agency subsequently adopted the AJ's recommended decision in a final

agency decision dated December 18, 1996. It is from this decision that

appellant now appeals.

The AJ viewed the facts in the light most favorable to appellant and

found the following:

Issue One

On or about September 15, 1993, appellant began working as a Material

Handler in the Storage Branch, Material Division, Supply Department at

the Naval Air Station, Miramar. At the time appellant began working

for S1, he assigned her to the issue window. Because appellant was

assigned to the issue window, she was required to take lunch and break

periods at times different from her co-workers. All employees assigned

to the issues window were treated in the same manner as appellant.

Appellant never requested a change in the lunch and break schedule.

Issue Two

Sometime between September, 1993 and November, 1993, appellant submitted

a memorandum addressed to her second-level supervisor (S2) requesting a

shift change from 0730-1600 to 0700-1530 so that she could participate

in a car-pool arrangement with a friend who started work at 0700 hours.

S2 initially disapproved the shift change because appellant was new at her

job and he wanted her to be at work when most of the other employees were

there until she became familiar with her job.<1> S2 also told appellant

that she could renew her request once she became familiar with her job.

However, appellant never renewed her shift change request. S2 did approve

two other employees' shift change requests. C1 (non-black female) had

an emergency situation which involved a child with a medical problem.

C2 (non-black, male) had a hardship situation which involved personal

problems with his child. There is no indication in the record as to

how long C1 and C2 worked for the agency prior to their shift change.

Issue Three

On one occasion, sometime between September, 1993 and November, 1993,

R1 stepped over appellant rather than walking around her while she was

sorting parts on the ground. R1 did not make any negative or demeaning

verbal comment or physical gesture.

Issue Four

Sometime between September, 1993 and November, 1993, S1 observed appellant

making trips to and from the bathroom. Sometime after S1 was detailed out

of his supervisory position<2> and replaced by R1, appellant complained,

for the first time, to S2 about her "supervisor" observing her enter and

exit the bathroom. Therefore, S2 believed that appellant was complaining

about her new supervisor, R1. S2 told appellant's new supervisor

to stop observing appellant as she entered and exited the bathroom.

The conduct did not occur after appellant complained to S2.

Hostile Work Environment

The AJ found the allegation of harassment to be based upon a series of

unrelated incidents which were neither sufficiently severe or pervasive

so as to unreasonably interfere with appellant's work performance.

The AJ noted that appellant did not allege that the incidents had any

adverse impact on her ability to perform her duties. In addition, the

AJ determined that the incidents which form the basis of appellant's

allegation of harassment on issues one, two and three appear to be no

more than one-time occurrences unrelated to each other by any discernible

common thread. Moreover, appellant does not allege that her supervisor

used any negative or demeaning verbal comments or physical gestures toward

appellant which would permit an inference of harassment based upon race,

color, sex or reprisal.

Specifically, with respect to the allegation that appellant was being

observed by S1 when she entered and left the bathroom (Issue Four),

while the AJ considered this allegation one of repeated conduct,<3>

the undisputed record shows that S1 did not make any negative verbal

comments or exhibit any gestures or other aggravating or demeaning

behavior toward appellant. Accordingly, even assuming that the conduct

was pervasive, the AJ found that it did not rise to the level of hostile

or abusive conduct. In addition, the AJ found that when appellant

complained to S2, he took immediate corrective action by immediately

warning her supervisor to stop the conduct. While S2 thought appellant

was complaining about S1's replacement and warned the wrong person,

since management previously removed S1 from his supervisory position it

effectively and promptly corrected the situation. Moreover, appellant

did not allege any improper conduct following her complaint to S2.

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

evidence not specifically addressed in this decision, the Commission

finds that the AJ's recommended decision properly analyzed appellant's

complaint as a hostile work environment claim. See Meritor Savings Bank,

FSB v. Vinson, 477 U.S. 57 (1986); Taylor v. Dept. of the Air Force,

EEOC Request No. 05920194 (July 8, 1992). The Commission concludes that,

in all material respects, the AJ accurately set forth the facts giving

rise to the complaint and the law applicable to the case. We further

find that the AJ correctly determined that appellant failed to establish

harassment based on race, color, sex, or reprisal.

Disparate Treatment

The AJ also determined that appellant failed to establish a prima

facie case of discrimination on the bases of race, color, and

sex regarding the denial of her shift change request (Issue One).

While the AJ found appellant to be a member of the protected classes,

she failed to establish the existence of a similarly situated employee

who was not in her protected classes but who was treated differently.

Specifically, there is no indication in the record that C1 or C2 were

newly hired employees. In addition, C1 and C2's shift change requests

involved emergency and family hardship situations which were not present

in appellant's request. In addition, we find that denying new employees

an alternative work schedule so as to ensure that other workers are on

duty to supervise them, to be a legitimate, non-discriminatory reason for

the denial of appellant's shift change request and appellant presented

no evidence which indicates pretext.

With respect to the issue regarding appellant's lunch hour and break

schedule (Issue Two), the AJ found that appellant failed to establish

a prima facie case of discrimination on the bases of race, color,

and sex. While appellant is a member of the protected classes, she

failed to identify any similarly situated employee not in her protected

classes who was treated differently. The undisputed record shows that

appellant's lunch hour and break schedule were different than other

employees because she worked the issue window and all employees who

worked the issue window were treated the same as appellant. Moreover,

the record indicates that appellant never requested a change in her

lunch hour or break schedule prior to contacting an EEO Counselor,

and after it was brought to the attention of management officials, the

agency offered to adjust appellant's schedule. Appellant, nevertheless,

declined to have her lunch and break schedules changed. In addition,

we find that the agency presented a legitimate, non-discriminatory

explanation for appellant's lunch and break schedule and that appellant

failed to present any evidence of pretext.

With respect to the allegation that R1 stepped over appellant (Issue

Three), we find no evidence that this conduct was motivated by race,

color, and sex or that this conduct effected a term or condition of

appellant's employment.

With respect to the allegation regarding S2 observing appellant entering

and leaving the bathroom (Issue Four), we find no evidence that this

conduct was motivated by race, color, and sex or that this conduct

effected a term or condition of appellant's employment.

The AJ also found that appellant failed to establish a prima facie case

of reprisal discrimination on all issues. Appellant alleged that she

engaged in prior EEO participation as a witness in 1989, 1990, and 1992.

However, there is no documentation to support appellant's allegation

as the agency does not maintain records of witness participation.

In addition, the appellant failed to allege and show that the agency

officials knew of appellant's prior EEO participation. The AJ also noted

that, as indicated above, appellant failed to show that she was treated

differently from any other similarly situated employee. Accordingly,

the AJ found insufficient evidence to establish a causal connection

between the conduct alleged and appellant's alleged prior EEO activity.

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

evidence not specifically addressed in this decision, the Commission

finds that the AJ's recommended decision also properly analyzed

appellant's complaint as a disparate treatment claim. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See also St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993); Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248, 253-56 (1981); Hochstadt v. Worcester Foundation

for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass), aff'd, 545 F.2d

222 (1st Cir. 1976). The Commission concludes that, in all material

respects, the AJ accurately set forth the facts giving rise to the

complaint and the law applicable to the case. We further find that the

AJ correctly determined that appellant failed to establish discrimination

based on race, color, sex or reprisal. As appellant offered no additional

evidence in support of her claim on appeal, we discern no legal basis

to reverse the agency's finding of no discrimination. Accordingly,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the agency's final decision finding no discrimination.

STATEMENT OF RIGHTS -- ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

4/08/99

DATE Frances M. Hart

Executive Officer

Executive Secretariat

1Appellant contended that S1 had a role in the disapproval of her shift

change request. However, she presented no evidence of his involvement

or that he had the authority to grant or deny appellant's request.

2S1 was removed as a supervisor because his management style was

considered too strict and non-communicative. A few months later S1

retired.

3Appellant intimated in her complaint that this conduct occurred more

than once, but failed to adequately specify on how many occasions the

conduct occurred.