01a35303
11-10-2004
Janine Thomas, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Janine L. Thomas v. Department of the Air Force
01A35303
November 10, 2004
.
Janine Thomas,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A35303
Agency No. WE1M02008
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.<1> For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Logistics Management Specialist, GS-0346-12 at the agency's
Wright-Patterson Air Force Base, Ohio facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on March 6, 2002,
alleging that she was discriminated against harassed on the basis of
religion (Jewish) and in reprisal for prior EEO activity when:
her supervisor (religion unknown) refused to assign her duties in
accordance with her position description, starting in July 2001, and
continuing to the present date;
(2) her supervisor kept a copy of Jewish holidays in her AF 971 File
and annotated her AF 971 File, �this portion removed per negotiated
resolution agreement on June 28, 2001;�
when her supervisor annotated her leave slips and questioned her
religious holidays, on and before October 9, 2001;
she was charged as absent without leave (AWOL) on October 19, 2001,
when she went to see the Base Chaplain;
her supervisor informally counseled her, on November 3, 2001;
her supervisor allowed another employee, who was not in her chain of
command, to informally counsel her on November 3, 2001;
her supervisor charged her AWOL for going to the EEO Office, on November
21, 2001;
her supervisor charged her with being AWOL when she went to the
Occupational Medicine Office, which was later changed to sick leave,
on November 28, 2001;
her supervisor failed to correct a �chemical smell� in her duty station,
on December 3 2001, when the complainant requested an alternative
duty station;
her supervisor gave her a seven day suspension from February 7, 2002,
to February 13, 2002;
her supervisor denied her an opportunity to work credit hours for the
period December 30, 2001, through January 12, 2002, and the pay period
January 27, 2002, to February 9, 2002;
her supervisor denied her request to use credit hours for Sabbath
preparation on Fridays, but granted her credit hours for January 28
and 29, 2002, and February 4, 2002;
her supervisor did not grant her request for time off on March 8, 2002;
her supervisor gave her a fully successful performance rating with a
lower appraisal factor rating; and
her supervisor altered one of her leave documents in May of 2002.
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 found that complainant failed to establish a prima facie case of
harassment based on religion or reprisal.
With respect to her allegation regarding religious accommodation, the
agency found that it was not clear if she was able to establish a prima
facie case. However, the agency contended that management articulated
legitimate nondiscriminatory reasons for the conduct challenged by
complainant. Specifically, the agency found that complainant requested
religious accommodation in the form of management's approval for her work
credit hours on Monday through Thursday of each week, in order for her
to observe the Sabbath. The agency asserted that management approved
her request to earn credit hours and consistently approved her leave
for her Sabbath or any other religious observances.
On appeal, complainant contends that, with respect to issue 10, the
agency should not have suspended her which resulted in her appraisal
(issue 14) being downgraded. 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, 802-03 (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 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 proffered
by the agency was a pretext for discrimination. Id. at 256.
With respect to complainant's claim of retaliation, 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) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or 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 25, 2000).
With respect to issue 1, assuming arguendo that complainant has
established a prima facie case of religious discrimination and reprisal,
we find that the agency did articulate legitimate, nondiscriminatory
reasons for assigning complainant certain duties. Complainant's
supervisor stated that complainant's demeanor alienated their customers
and this severely limited the duties to which she could be assigned.
He stated that the customers requested that they not deal directly
with her.
Complainant did not demonstrate, by a preponderance of the evidence, that
the agency's reasons were a pretext for discrimination on the basis of
religion or reprisal. Aside from stating that she was subject to unfair
treatment and harassment, complainant submitted no specific evidence
of pretext. Further, there is no evidence in the record to support
the conclusion that the legitimate reason proffered by the agency was
a pretext for discrimination or reprisal.
Issues (4), (7) and (8) concern complainant being charged with being AWOL
and will be addressed together. Assuming arguendo that complainant has
established a prima facie case of religious discrimination and reprisal,
we find that the agency did articulate legitimate, nondiscriminatory
reasons for charging the complainant for being AWOL. Complainant's
supervisor stated that complainant was repeatedly late and was charged
with being AWOL on these occasions because she did not inform him of
her whereabouts. Aside from stating that she was subject to religious
discrimination and harassment, complainant submitted no specific evidence
of pretext. Further, there is no evidence in the record to support
the conclusion that the legitimate reason proffered by the agency was
a pretext for discrimination or reprisal.
Concerning issue 10, assuming arguendo that complainant has established
a prima facie case of religious discrimination and reprisal, we find
that the agency did articulate legitimate, nondiscriminatory reasons
for giving complainant a seven day suspension. Complainant's supervisor
stated that complainant was issued the suspension because she displayed
inappropriate behavior toward him. Specifically, he stated that
complainant was very argumentative with him if he asked her a question.
Aside from stating that she was subject to religious discrimination
and harassment, complainant submitted no specific evidence of pretext.
Further, there is no evidence in the record to support the conclusion
that the legitimate reason proffered by the agency was a pretext for
discrimination or reprisal.
With respect to issue 14, assuming arguendo that complainant
has established a prima facie case of religious discrimination
and reprisal, we find that the agency did articulate legitimate,
nondiscriminatory reasons for giving complainant a lower performance
appraisal. Complainant's supervisor stated that complainant had her
performance appraisal lowered because she did not warrant a higher rating.
Specifically, the supervisor stated that complainant was confrontational
with management, coworkers and customers, and needed constant supervisory
intervention to complete a project. Complainant's second level
supervisor stated that he was aware of complaints from contractors and
customers about complainant's work performance and her coworkers found
her behavior to be very disruptive. Aside from stating that she was
subject to religious discrimination and harassment, complainant submitted
no specific evidence of pretext. Further, there is no evidence in the
record to support the conclusion that the legitimate reason proffered
by the agency was a pretext for discrimination and reprisal.
We find that issues (1), (2), (3), (5), (6), (9), (11), (12), (13) and
(15) are properly framed as a claim of harassment, comprised of ten
alleged incidents. Harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
or religion is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all of
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, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Although complainant identified a series of events and circumstances
over a period of nearly one year that she found to be unpleasant or
demeaning, these appear to us to result from the sort of disappointments
and disagreements that inevitably occur in the workplace. We find
that even taking these incidents as true, they are not so severe or
pervasive as to entitle complainant to relief under the federal employment
discrimination laws. See Lynch v. United States Postal Service, EEOC
Appeal No. 01981027 (July 16, 1999).
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 FAD.
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
November 10, 2004
__________________
Date
1 The Commission declines to consolidate this case with EEOC Appeal
No. 01A40198 which alleges breach of a settlement agreement, but we
do note that claims 10 -12 herein appear to be the same claims in the
settlement agreement of which complainant is alleging breach.