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).