Janine Thomas, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 10, 2004
01a35303 (E.E.O.C. Nov. 10, 2004)

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.