01A15299
04-16-2002
Gladys Moore, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Gladys Moore v. Department of the Army
01A15299
April 16, 2002
.
Gladys Moore,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A15299
Agency Nos. DAY97AR0021E, DAY98AR0420E
Hearing No. 280-99-4183X
DECISION
Complainant timely initiated an appeal from the agency's final order
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. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that, during the relevant period, complainant
was employed as a GS-326-05, Office Automation Assistant at the
agency's Logistics Systems Support Center, Administrative Division
facility in St. Louis, Missouri. The record reflects that on March
20, 1996, complainant's position was audited by the agency's Personnel
Classification Specialist (PSC). PSC's audit resulted in a noncompetitive
promotion for complainant to the GS-303-06 position of Resource Assistant
(Office Automation). Complainant's promotion became effective May
26, 1996.
Complainant contends that S1 inaccurately described her duties and that,
as a result, she only received a promotion to the GS-6 grade level instead
of the GS-7 grade level. Complainant also contends that the designation
of her job series as �303� was incorrect, and that her title should have
been Training Technician or Training Development Specialist. In support
of this contention, complainant states that, pursuant to S1's request,
she assumed some the duties of a Training Technician that had retired
from the agency. Complainant explained the additional duties that she
was performing to PSC during the audit process.
In conducting the audit of complainant's position, PSC states that
she considered: the position description provided by S1, her personal
discussions with complainant wherein complainant described her duties
and responsibilities; and work samples provided by complainant in order
to ultimately determine a grade and series. PSC stated that complainant
performed clerical, administrative and training duties, none of which
was more dominant than the rest. PSC contends that she decided to use
the 303 job series because it that was a general job series designated
for Miscellaneous Clerks and Assistants.
In addition, PSC states that in order for complainant to qualify for a
training job series, she is required to have specialized knowledge of
training responsibilities that she did not have. After reviewing the
level of complainant's responsibilities, PSC performed a formal evaluation
and complainant's duties matched up with the description of a GS-6
grade level. PSC issued a written report based on the results of the
desk audit and concluded that complainant's GS-5 position involved GS-6
job duties, and accordingly, she recommended complainant for an upgrade.
On May 26, 1996, S1 promoted complainant to a GS-6 due to an accretion
of duties procedure.
Complainant contends that following the desk audit S1 stated that her
job would never be a GS-7 grade level, and that if it were she would have
to compete for it. Complainant also contends that S1 told her that she
had hurt a lot of people with her prior EEO complaint.
In regard to complainant's second claim of reprisal, complainant
states that in July 1997, she was supervised by a new team leader (S2).
Complainant contends that on one occasion, S2 was rude, gave her orders
and talked down to her. Complainant states that she did not like the
tone of voice utilized by S2. The record reflects that on September 17,
1997, complainant overheard S1 telling S2 that she should be careful
of complainant. Complainant also overheard S1 tell S2 that complainant
frequently challenged authority.
Complainant contends that S2 began taking away some of complainant's
duties and began assigning her menial, administrative tasks.
Complainant also contends that S2 began attending meetings regarding
training functions instead of sending complainant. Complainant further
contends that S2 would only communicate with her by leaving notes for
her on her desk.
Complainant sought EEO counseling and filed a formal EEO complaint on
May 23, 1996, alleging that the agency had discriminated against her on
the basis of reprisal (prior EEO activity under Title VII) when:
(1) a desk audit did not result in a promotion to a GS-7 in May 1996, and
her supervisor (S1: prior EEO activity) and team leader harassed her and
made negative comments about her job performance on September 17, 1997.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
Although the AJ concluded that complainant established a prima facie
case of reprisal discrimination, she concludes that complainant did
not establish a causal connection between her prior protected activity
and not being promoted to a GS-7. Specifically, the AJ found that:
complainant engaged in prior protected activity; management was aware
of the protected activity; and complainant was adversely affected when
she was not promoted to a GS-7.
The AJ also concluded that the agency articulated legitimate,
nondiscriminatory reason for concluding that complainant was functioning
as a GS-303-6, Resource Assistant (Office Automation). The AJ found
that the agency followed standard, established agency procedures for
conducting the desk audit of complainant' s position and matching
complainant's responsibilities with a job series and grade level.
In regard to complainant's harassment claim, the AJ concluded that
complainant failed to establish a prima facie case. In particular, the
AJ found that complainant failed to show that S2 was aware of her prior
protected activity. The AJ also found that complainant did not show
that the incidents were sufficiently severe that they 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 working environment.
The agency's FAD implemented the AJ's decision. Complainant makes no
new contentions on appeal, and the agency requests that we affirm its FAD.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
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).
The Commission finds that the agency has articulated a legitimate
nondiscriminatory reason for its actions. Specifically, we find that
the record establishes that the desk audit conducted by PSC followed
standard procedures. The record shows that all of the duties and
responsibilities complainant contended justified a promotion to the
GS-7 level were considered and part of a written evaluation by PSC.
In addition, the record does not reflect that S1 and/or S2 influenced
or manipulated the desk audit. In point of fact, at the conclusion of
the desk audit complainant was promoted to a GS-6.
The Commission also finds that complainant has not presented sufficient
evidence to support a claim of hostile working environment and/or
harassment. The fact that complainant's supervisor wrote notes as
opposed to speaking to her directly is not severe and/or pervasive
conduct. In fact, the uncontroverted record shows that S2 began writing
notes only after complainant was rude to her on several occasions.
The record also shows that complainant's former team leader permitted
complainant to perform many of his duties, but S2 preferred to perform
her responsibilities herself. Furthermore, the record shows that S2 was
more �hands on� than complainant's former team leader and complainant
did not like the close supervision.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. Under these circumstances,
and after a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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
April 16, 2002
__________________
Date