Kathleen M. Keating, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 19, 2002
01A11186 (E.E.O.C. Sep. 19, 2002)

01A11186

09-19-2002

Kathleen M. Keating, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Kathleen M. Keating v. Department of the Army

01A11186

September 19, 2002

.

Kathleen M. Keating,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A11186

Agency Nos. AEGGFO980610060, AEGGFO980610070

Hearing Nos. 260-99-8041X, 260-99-8102X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil

Rights Act (Title VII) (42 U.S.C. � 2000e et seq.) The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she

was discriminated against with respect to her terms and conditions

of employment, on the bases of color (White) and sex (female), and

in retaliation for prior EEO activity, as set forth below. For the

following reasons, the Commission AFFIRMS the agency's final order.

The record reveals that complainant, an Internal Review Chief, GS-12 with

the St. Paul, Minnesota, Engineering District of the agency's Corp of

Engineers, filed formal EEO complaints AEGGFO980610060 (Complaint 1),

and AEGGFO980610070 (Complaint 2) with the agency on April 28, 1998 and

June 6, 1998, respectively, alleging that the agency had discriminated

against her as follows:

Complaint 1. (Discrimination on the bases of color, sex and retaliation)

Claim 1. Her supervisor gave persons outside her protected groups higher

performance appraisals and performance bonuses than she received.

Claim 2. She was denied office space

Complaint 2 (Discrimination on the basis of retaliation)

Claim 3. She received a letter of counseling.

The agency accepted the complaints and conducted an investigation.

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.

With respect to Claim 1, the AJ concluded that complainant made out a

prima facie case of sex and color discrimination but failed to do so with

respect to retaliation. With regard to Claim 2, the AJ concluded that

complainant failed to establish a prima facie case of discrimination

on any basis. With respect to Claim 3, the AJ found that complainant

had failed to make out a prima facie case of retaliation, the only

basis alleged. The AJ further concluded that the agency articulated

legitimate, nondiscriminatory reasons for all of the challenged actions.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination/retaliation. In reaching this conclusion, the AJ found,

on Claim 1, that the evidence indicated that complainant's performance

had justified the appraisal she received; on Claim 2, that the only

persons in complainant's grade who were assigned offices were those whose

duties were confidential; and, on Claim 3, that the letter of counseling

was justified because complainant had improperly accessed confidential

information concerning another employee.

The agency's final order implemented the AJ's decision. From that order,

complainant brings the instant appeal.

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).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated by

discriminatory animus toward complainant's color or sex. We discern no

basis to disturb the AJ's decision.

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 agency's

final order.

However, the record in this matter reveals a course of conduct on the

part of complainant's supervisor that, although not providing any basis

for granting relief to complainant in this case, cannot go unmentioned.

Hearing testimony indicates that complainant's supervisor routinely made

derogatory, insulting and demeaning remarks about other persons' races and

national origins, in particular, African-Americans, Mexicans and Asians.

In one particularly egregious episode recounted by a witness at the

hearing who is Hispanic, the supervisor described a group of Mexican

laborers as �dumb wetbacks.� Apparently the supervisor's use of this

type of language is widely known, yet the record does not indicate the

agency ever took steps to bring it to an end.

The Commission reminds the agency of its responsibility to prevent

the reoccurrence of this type of condemnable behavior. The comments

concerning the racial and ethnic heritages of agency employees were

patently offensive. Derogatory racial comments are prohibited conduct

under Title VII. The agency has a duty to eradicate all traces of

such conduct in the work place, not ignore it.<1> Therefore, we will

order that the agency conduct EEO training for the S1 and for any

other management level officials who were aware of and tolerated S1's

objectionable behavior.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

affirm agency's final order and enter a finding of no discrimination on

complainant's complaints. However, in order to remedy the discriminatory

remarks made by S1, the agency will take the action ordered below.

ORDER

A. Pursuant to EEOC Regulation 29 C.F.R. 1614.102(a)(5), the agency

is directed to immediately provide for S1 a training program that will

educate him so that he may overcome his unlawful prejudices. This training

program shall also be afforded to all other management level officials

who were aware of and tolerated S1's objectionable behavior.

B. The agency is directed to post at its Corp of Engineers St. Paul,

Minnesota Engineering District facility copies of the attached

notice. Copies of the notice, after being signed by the agency's duly

authorized representative, shall be posted by the agency immediately

upon receipt, and shall be maintained by it for 60 consecutive days, in

conspicuous places, including all places where notices to employees and

applicants for employment are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material.

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

September 19, 2002

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated_____________ which found that a

violation of the Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privileges of

employment. This facility supports and will comply with such Federal law

and will not take action against individuals because they have exercised

their rights under law.

The facility was found to have unlawfully permitted an agency official

to repeatedly use racially and ethnically derogatory language in the

workplace. The agency shall therefore remedy the unlawful actions

by requiring that official, and any officials who were aware of and

tolerated the derogatory language, to undergo training concerning the

agency's obligations under the federal equal employment opportunity laws.

The facility will not in any manner restrain, interfere, coerce,

or retaliate against any individual who exercises his or her right to

oppose practices made unlawful by, or who participates in proceedings

pursuant to federal equal employment opportunity law. 29 C.F.R. Part 1614.

_____________________

Date Posted: ___________

Posting Expires: _______

1Behavior of this nature may also expose the agency to vicarious liability

for harassment. See Enforcement Guidance: Vicarious Liability for Unlawful

Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).