Joycelyn A. McNeil, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.

Equal Employment Opportunity CommissionJun 13, 2001
01980212 (E.E.O.C. Jun. 13, 2001)

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.�