01980212
06-13-2001
Joycelyn A. McNeil, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Joycelyn A. McNeil v. Department of Defense
01980212
06-13-01
.
Joycelyn A. McNeil,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal No. 01980212
Agency No. DT-97-021
DECISION
INTRODUCTION
On October 4, 1997, Joycelyn A. McNeil (hereinafter referred to as
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (hereinafter referred to as EEOC or Commission) from the
final decision of the Department of Defense (Defense Logistics Agency)
(hereinafter referred to as agency), 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. For the following reasons,
we AFFIRM the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against on the bases of race (African American) and color (black)
when she was suspended from duty without pay for three calendar days,
effective December 18, 1996, for the use of offensive language and
discourteous conduct.
BACKGROUND
During the relevant time, complainant was employed as a Transportation
Assistant, GS�2102-06, at the Transportation Branch of the Defense
Distribution Depot San Diego facility (DDDC), in San Diego, California. On
October 15, 1996, complainant and a co-worker (Co-worker) were working
at the Air Desk processing shipments. A customer (Customer) went to
the Air Desk and spoke to Co-worker for approximately 15 to 20 minutes.
Complainant avers that Co-worker approached her and said, �[Customer]
has a walk-through.�<1> According to complainant, she became upset
because Co-worker was assigned to work the Air Desk as well, and could
have easily processed the shipment.<2> She interpreted Co-worker's
statement as a direction, rather than a request for help. Complainant
refused the Co-worker's request and informed him that he could take the
shipment to the first level supervisor (Supervisor). Later that day,
Supervisor approached complainant with Co-worker and Customer and asked
complainant why she did not ship the document. Complainant informed
Supervisor that Co-worker and Customer were acting unprofessionally in
that they had �sn[uck] around� with the shipment. When Supervisor said
that Co-worker had taken the shipment to complainant because she was
already on the booking computer screen, complainant replied, �Bullshit.
Oops, sorry. B.S.� Complainant avers that her use of the profanity was
a �slip of the tongue� and was used in reference to the Co-worker's and
Customer's conduct. Supervisor avers that the statement was directed
to the Customer. Complainant told Supervisor that she could �write
[complainant] up,� but she was not going to process the document because
she felt strongly about the situation. Complainant further avers that
other employees use profanity daily. On November 25, 1996, the agency
issued a Notice of Suspension for the October 15, 1996 incident.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on January 17, 1997.
At the conclusion of the investigation, complainant was provided a copy
of the investigative file and requested a final agency decision (FAD).
The agency issued a decision finding no discrimination.
In its FAD dated September 5, 1997, the agency determined that complainant
failed to establish a prima facie case of race or color discrimination.
Even assuming that the record had established a prima facie case, the
agency found that it had presented a legitimate, nondiscriminatory
reason for its action. Specifically, complainant was disciplined
for using profanity because management witnessed complainant using the
profanity and being discourteous towards a customer. The agency concluded
that complainant failed to present evidence to prove that the agency's
articulated reason was pretext for race discrimination. The agency noted
that although complainant proffered examples of employees using profanity,
the instances in which the employees used the profanity were not witnessed
by their first line supervisors nor directed towards a customer.
On appeal, complainant contends, among other things, that: 1) others use
profanity in the work place and are not punished; and 2) a co-worker
(Caucasian) directed profanity to all of the employees in the office,
while another responded to the co-worker with profanity and a threat of
violence, with neither co-worker receiving punishment from management.
The agency stands on the record and requests that we affirm its FAD.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978).<3> The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Serv.,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of race and color discrimination.
Therefore, the burden shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. Here, the agency presented
evidence that complainant was disciplined for using profanity on October
15, 1996 because management witnessed complainant using the profanity
and being discourteous towards a customer.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was pretext for discrimination.
Complainant contends other employees use profanity in the workplace.
However, in the instant case, complainant used the profanity in the
presence of management and a customer. Complainant also argues that
a co-worker (comparator I) directed profanity to all of the employees
in her office, and another co-worker (comparator II) responded to the
comparator I with profanity and a threat of violence.<4> According to
complainant, neither of the comparators was punished. In order to be
considered similarly situated, the person with whom the complainant
is comparing herself must be similar in substantially all aspects,
so that it would be expected that they would be treated in the same
manner. Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 68
(6th Cir. 1985); Majahad v. Department of Labor, 915 F. Supp. 499
(D.C. MA 1996) (in order to establish disparate treatment, comparators
to the probationary complainant were other probationary employees).
Here, complainant does not state whether management was present for
the comparators' use of profanity. We note also that the comparators
allegedly used the profanity to address co-workers, the profanity was
not directed towards a customer, and the record does not indicate that a
customer was present. For these reasons, the alleged comparators were
insufficiently similar to complainant to serve as proper comparators.
Although complainant expresses concern that her co-workers use profanity
on an ongoing basis in the workplace and are not disciplined, we note
that complainant has failed to show that her co-workers use the profanity
in the presence of management or a customer.
The record supports the agency's conclusion that complainant was
disciplined for using profanity on October 15, 1996 because management
witnessed complainant using the profanity and being discourteous towards
a customer. Therefore, after a careful review of the record and arguments
and evidence not specifically addressed in this decision, we find that
complainant has failed to prove that the agency acted on the bases of
race or color discrimination.
CONCLUSION
Accordingly, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
__06-13-01________________
Date
1 A walk-through consists of quickly booking the shipment to be mailed
on the computer, labeling the shipment, and creating bills of lading
and Federal Express labels.
2 Complainant avers that she was more upset by how she was approached
by Co-worker and Customer. She was also bothered that the Co-worker and
Customer spoke for some time before taking her the shipment to process.
3 We find that the agency erred to the extent that it found that
complainant had not established a prima facie case of race or color
discrimination because she was unable to demonstrate that she was treated
less favorably than any similarly situated employee. We note that to
establish a prima facie case, complainant must only present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination. Furnco, 438 U.S. at 576. It is not
necessary for the complainant to rely strictly on comparative evidence in
order to establish an inference of discriminatory motivation necessary to
support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).
4 According to complainant, comparator I stood in the middle of the
office and said, �Whoever the son of a bitch who put the documents back
in my basket can stop playing games.� Comparator II responded by saying,
�If he is accusing me of putting the documents back in his basket,
I will take the son of a bitch outside and whip his little ass.�