01A02407
04-23-2002
Kathleen A. Miller, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Kathleen A. Miller v. Department of the Navy
01A02407
April 23, 2002
.
Kathleen A. Miller,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A02407
Agency Nos. 94-65966-001, 94-65966-002,
95-65966-001, 96-65966-001,
97-65966-001, 97-65966-003,
98-65966-0020
Hearing Nos. 120-98-9971X, 120-99-6210X,
120-99-6342X to 120-99-6345X,
120-99-6588X, 120-99-6784X,
120-99-6916X to 120-99-6918X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaints 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>
In Complaint One (DON 94-65966-001), complainant alleges that she was
subjected to sex discrimination and reprisal for filing a prior EEO
complaint when:
(1) She received an �exceeds fully successful� 1993 annual performance
appraisal instead of an �outstanding� appraisal;
Her workload diminished;
She was subjected to �shunning� based upon policies established by the
supervisory chain of the Fitting Out and Supply Support Assistance Center
(FOSSAC).
In Complaint Two (DON 94-65966-002), complainant alleges she was subjected
to the following acts of reprisal for filing a prior EEO complaint:
Her supervisor failed to update and correct her position description
(PD) and performance standards (PS);
Her right to privacy was violated because the supervisor (S1) left the
door open during a performance appraisal midyear review;
She received a letter of reprimand from S1.
In Complaint Three (DON 95-65966-001), complainant alleges she was
subjected to sex discrimination and reprisal when she was denied the
opportunity to act as acting/substitute Logistics Engineering Department
Director while this supervisor was on leave or travel.
In Complaint Four (DON 96-65966-001), complainant alleges she was
subjected to sex discrimination and reprisal when she was denied the
opportunity to participate in executive level training as an intern to
the Office of Federal Procurement Policy.
In Complaint Five (DON 97-65966-001), complainant alleges that as an
act of reprisal for prior EEO activity, she did not receive a coffee
cup designated as �Captain's Mug� given to several individuals at FOSSAC
prior to the departure of the organization's Commanding Officer.
In Complaint Six (DON 97-65966-003), complainant alleges that as an act
of reprisal for prior EEO activity, she was subjected to the following:
S1 made public statements that complainant would be denied a supervisory
position in an upcoming reorganization/new project;
S1 asked a coworker for a written statement relating to complainant's
allegation that she was injured during official travel.
In Complaint Seven (DON 98-65966-002), complainant alleges she was
subjected to reprisal when she was not selected for a vacancy position
designated as �Supervisory General Supply Specialist.�<2>
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant had been employed from 1987-1999
variously as a GS-1102-13 Contract Specialist, Procurement Analyst and
Program Analyst at the Fitting Out and Supply Support Assistance Center
(FOSSAC), Norfolk Naval Air Station, in Norfolk, Virginia. Complainant
held these positions in several departments including the Naval
Acquisition Management Training Office (NAMTO), Logistics Engineering
Department (LOGENG), Systems Training Department (APADE/STD), and Fitting
Out Supply Assistance Team (FOSAT). In August 1988, complainant filed a
formal complaint of discrimination. This complaint was settled in March
1990, the most salient terms of which provided for complainant's promotion
to a GS-13 and her reassignment to LOGENG. Subsequently, again believing
herself to be a victim of discrimination and reprisal, complainant
filed formal EEO complaints with the agency, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of sex discrimination. Specifically, the AJ found that complainant failed
to demonstrate that similarly situated employees not in her protected
classes were treated differently under similar circumstances. The
AJ also concluded that complainant failed to establish a prima facie
case of reprisal. Finally, the AJ concluded that complainant failed
to establish a prima facie case of harassment because of the lack of
patterning, severity and pervasiveness of the alleged actions. The AJ
further concluded that the agency articulated the following legitimate,
nondiscriminatory reasons for its actions:
Changes in the mission of FOSSAC, and of LOGENG, significantly affected
procurement and acquisition work, and likewise affected the work and
duties of complainant and her co-workers. There was a corresponding
increase in the workload of the industrial engineers at LOGENG while
complainant's, and other employees', workloads were decreasing. Also,
the opportunities for work that arose and remained for complainant to
perform were hampered by complainant's lack of teamwork and cooperation
with her coworkers.
Management officials were fearful about re-writing complainant's
position description because doing so would have resulted in a lower
grade for complainant's 1102 position. It was eventually rewritten
when complainant was transferred to STD, and again when she was later
transferred to FOSAT.
Many employees chose to avoid complainant due to her personality and
office behavior. Some employees were warned by management officials not
to socialize excessively or to chit-chat unproductively with complainant.
There was, however, no policy, formal or informal, to shun complainant.
As to the substitute/acting LOGENG Director position, complainant was not
selected because she was not best qualified; although she was conversant
in procurement/acquisition, someone who possessed technical skills as
an engineer was needed after the changes to the mission occurred.
As to the alleged privacy violations, the door was left open for the other
ten employees during their mid-performance review as well. Additionally,
no one heard the discussion between complainant and her supervisor.
The letter of reprimand resulted from complainant's numerous refusals
to return a property pass, and such refusals were couched in disrespect
and insubordination.
The OFFP internship was denied to complainant because it was unrelated to
the mission of the organization, and although it would serve the personal
benefit of complainant, the cost would be borne solely by the agency.
As to the investigation of complainant's work injury, a coworker was
asked for a statement about the incident because a question was raised
as to the veracity of complainant's reported injury.
As to the threatened change in supervisory status, complainant was
ultimately chosen for the position. There was uncertainty for a period
of time, as to who would fill the position.
As to the Captain's Mug Award, while complainant's name was submitted
for consideration, she was not selected and various other employees
of higher grades and superior service, likewise did not receive mugs;
in fact, almost all of the recipients were military personnel.
As to complainant's nonselection as Supervisory General Supply Specialist,
complainant ranked well below the range to be competitive for final
selection. Another female was eventually selected.
The AJ further found that complainant did not establish that more
likely than not, the agency's articulated reasons were a pretext to
mask unlawful discrimination or reprisal. In reaching this conclusion,
the AJ found unpersuasive complainant's argument that her prior EEO
activity was held against her and maliciously relayed to management.
The AJ additionally found that there was no express policy by management
to shun complainant or warn others to avoid her. Rather, the agency was
concerned with excessive socialization at the workplace. Additionally,
complainant's personality was a bar in and of itself in this regard.
The AJ found that complainant failed to establish, by a preponderance of
the evidence, that any of the agency's actions, including the alleged
advice to shun her, were motivated by animus toward her sex or prior
EEO activity. The agency's final decision implemented the AJ's decision.
On appeal, complainant, through her attorney, restates arguments
previously made at the hearing. She also contends that the AJ used an
incorrect proof scheme when deciding the case. Specifically, she argues
that when a complainant puts forth �direct evidence� of discrimination,
the burden of proof shifts back to the agency to prove that it relied on a
nondiscriminatory rationale for its actions. Complainant also emphasizes
the importance of the testimony of several witnesses that they were
instructed to avoid her. In response, the agency restates the position
it took in its FAD, and requests that we affirm its final decision.
The agency also asserts that the AJ used the correct proof scheme,
arguing that the scheme put forth by complainant is applicable to �mixed
motive� cases, which is not the nature of the instant case inasmuch as
�the claimed �direct evidence' is nothing more than her own testimony
... which was heard and rejected in its entirety by the finder of fact.�
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
It is well-settled that harassment based on an individual's sex or prior
EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson,
477 U.S. 57 (1986). In order to establish a claim of harassment under
those bases, the complainant must show that: (1) s/he belongs to the
statutorily protected classes and/or engaged in prior EEO activity; (2)
s/he was subjected to unwelcome conduct related to his/her membership
in those classes and his/her prior EEO activity; (3) the harassment
complained of was based on his/her sex and/or prior EEO activity; (4)
the harassment had the purpose or effect of unreasonably interfering
with his/her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994).
As an initial matter, we note that even assuming that all the incidents
happened as described by complainant, there is no evidence to indicate
that the incidents were motivated by her sex or related to her sex in
any way.
Turning to complainant's claim of retaliatory harassment, the AJ
found that the agency presented a credible account regarding all of the
incidents raised by complainant. For instance, complainant did not merit
an �Outstanding� evaluation. See Hearing Transcript, p. 93, 122-3. As to
the work slow-down, other coworkers experienced a similar slow-down. See
Hearing Transcript, p. 154-5. The diminishment of work resulted from
a mission change. See Hearing Transcript, p. 90-91, 139, 208, 282.
As to the position description, there was a dilemma about what to put in
it because if it reflected the work that complainant was doing, it would
result in a grade decrease. See Hearing Transcript, p. 33, 287. As to
the internship, the benefits to the Command were not justified by the cost
(approximately $35,000). See Hearing Transcript, p. 257, 299, 549-53.
As to the mug, complainant was nominated, but not selected. See Hearing
Transcript, p. 263, 571-2. As to the Supervisor General Supply Specialist
position, candidates were grades based on knowledge, skills and abilities,
and complainant did not rank within the top three candidates. See Hearing
Transcript, p. 408-10. As to the allegation involving complainant's
ankle injury, another employee was asked to write a statement after that
employee had expressed surprise that complainant had hurt her ankle
on a trip to Washington, D.C. That employee was present on the trip
with complainant. See Hearing Transcript, p. 456-7, 568.
After considering complainant's arguments, the AJ found that even though
complainant's prior EEO activity was well-known within the agency,
and even though it may have been a regular topic of conversation
among her coworkers, the challenged actions were not taken in order to
harass complainant because of her prior EEO activity. In particular,
even assuming that complainant's coworkers were instructed or warned
to avoid talking to her, the AJ found that this was because of her
pattern of excessive socializing. See Hearing Transcript, p. 37,
302-305, 682. After a careful review of the record, we conclude that
the AJ's findings are supported by substantial evidence in the record.
Substantial evidence of record also supports the conclusion that
some coworkers avoided complainant for reasons related to personality,
including their fear of complainant, or their desire not to get involved
in her conflicts with management. See Hearing Transcript, p. 39, 246-7,
305, 413-14, 483, 491, 493, 574. While complainant clearly felt herself
to be harassed due to what she viewed as shunning and the other actions
complained of herein, we are not persuaded by complainant's arguments
or evidence that the real motivation behind the challenged actions was
an intent to harass complainant based on her prior EEO activity.
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, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision and, therefore, we affirm the agency's
final decision.
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 23, 2002
__________________
Date
1 The record indicates that complainant initially also alleged disability
and age as bases of discrimination. However, she withdrew the basis of
disability during the hearing, and did not pursue the basis of age.
2 The cases were subsequently consolidated.