01A35144
07-26-2004
Linda Cobb, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Linda Cobb v. Department of Veterans Affairs
01A35144
07-26-04
.
Linda Cobb,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A35144
Agency No. 2004-0558-2002100259
Hearing No. 140-2002-8212X
DECISION
INTRODUCTION
On November 23, 2001, complainant filed a timely formal complaint of
discrimination alleging that she was subjected to unlawful discrimination
on the basis of her sex (female) in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The EEOC administrative judge (AJ) determined that complainant was
not discriminated against due to her sex (female), and, hence issued a
decision without a hearing on June 30, 2003. On July 7, 2003 the agency
accepted and fully implemented the AJ's decision. Complainant filed
the instant appeal on August 21, 2003.
ISSUE PRESENTED
The issue on appeal is whether complainant was subjected to discrimination
because of her sex (female) in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of her complaint, complainant was formerly employed as a
Housekeeper at the agency's Medical Center, Environmental Management
Service, in Durham, North Carolina. The record provides that complainant
began her employment on March 16, 2001, and on October 5, 2001 resigned
after receiving a termination letter during her probationary period.
Complainant filed a formal EEO complaint on November 23, 2001, alleging
that the agency had discriminated against her on the basis of sex
(female) when:
(1) Claim 1 � Harassment (Continuous March 1, 2001 to September 30, 2001)
On July 11, 2001, her immediate supervisor (S1) had a discussion with
her regarding conduct, work habits, and a review of Medical Center
Policy 4.30 regarding probation;
On July 18, 2001, complainant received a letter from S1 confirming the
discussion on July 11, 2001, related to the following interactions
observed during non-break times: 1) sitting in a room talking to
patients, 2) sitting in a room with her eyes closed, 3) bringing water
to visitors, and 4) sitting in a chair drinking water;
On August 7, 2001, S1 gave complainant a written notice regarding her
leave usage, time and attendance;
During August 2001, complainant asserted she was spoken to about doing
personal laundry for a patient;
On September 14, 2001, complainant said she was accused of giving her
telephone number and address to a patient, and telling the patient
that he could come to live with her;
On September 19, 2001, complainant met with the Chief of Environmental
Management Services (S2) regarding complainant and concerns about her,
and was asked if she had been doing sexual favors for a patient.
Complainant stated she was questioned without the benefit of her
representative; and
On September 20, 2001, complainant stated that S2 informed her that
she would be terminated on October 5, 2001.
Claim 2 � Sexual Harassment (Continuous March 1, 2001 to September
30, 2001)
S2 continuously mentioned complainant's �beautiful smile,� and would
stare and watch her with a �look of desire� while she was in a bent over
position working (scrubbing floors), which made her feel �uncomfortable.�
Claim 3 � Forced Resignation (Constructive Discharge)
On October 5, 2001, complainant was forced to resign from her job without
due process or be terminated.
Regarding Claim 1, complainant asserts that these issues are related
to her sex because, prior to August 2001, she reported to S1 that she
felt as if S2 was �sexually molesting [her] with his eyes.� Complainant
alleges that the agency was �picking on her� because she complained to S1.
In regards to her leave usage (Claim 1-C), complainant asserts that �a
lot of guys take off and don't get written up.� However, complainant did
not provide any details as to these alleged similarly situated employees.
In response to these allegations, the agency denies the actions described
in Claim 1 were taken because of complainant's sex (female). The agency
asserts that their actions were in response to complainant's violations
of agency policies and regulations.
In Claim 2, complainant alleges that because of her sex (female), S2 would
continuously mention her �beautiful smile� and would stare and watch her
with a look of �desire� while she was in a bent over position working
(scrubbing floors), which made her feel �uncomfortable.� Complainant
stated that she waited several months to report S2's actions because
she feared for her job. After reporting it to S1, however, complainant
asserts that S2 stopped watching her in said manner. In response to
this claim, S2 denied knowledge of this allegation. S2 denies that S1
brought this issue to his attention. He asserts that he was not aware
of it until after complainant was terminated and he was contacted by
the EEO. Furthermore, S2 asserts that during his twice daily rounds he
watches various employees performing their work assignments.
Lastly, in Claim 3, complainant alleges that on October 5, 2004, she was
forced to resign from her job without due process or be fired because
of her sex (female). On September 20, 2001, complainant received
a termination letter from S2 that would become effective on October
5, 2001. Complainant asserts that she sought advice from the human
resource department regarding how she could be rehired by the agency and
�not have a bad record.� According to complainant, she was advised to
resign rather than be terminated. On October 5, 2001, complainant and
her representative submit her resignation to S2.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). In the agency's motion for a decision without
a hearing, the agency argued that complainant failed to prove that she
was a victim of discrimination, and that she failed to state a viable
claim of discrimination. The agency asserted that complainant had not
submitted any evidence of genuine issue or material fact that would
warrant an administrative hearing. Complainant did not provide any
evidence refuting the agency's motion.
Initially, the agency's motion for a decision without a hearing was
denied. However, after the completion of the Prehearing Conference, the
AJ reconsidered the motion and granted the agency's motion for a decision
on the record. The AJ issued her decision, finding no discrimination
on the basis of complainant's sex (female). 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 complainant's protected classes were
treated differently under similar circumstances. In addition, the AJ
found that the complainant did not proffer any evidence to support an
inference of discrimination based on sex.
Regarding complainant's allegation of a hostile work environment
(harassment) because of her sex (female), the AJ determined that the
allegations did not rise to the level of harassment severe enough to
trigger a violation of Title VII. Specifically, the AJ found that the
record was devoid of any evidence which supported complainant's perception
of the allegations. Furthermore, the record supports that the agency's
actions were based on the its interest in providing quality service to
its patients.
The agency's final order, issued on July 9, 2003 found that the AJ's
decision was factually and legally correct and, therefore, fully
implemented the AJ's 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 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. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final order.
ANALYSIS AND FINDINGS
EEOC Regulations provide that harassment on the basis of sex is a
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. 29 C.F.R. � 1614.11. As noted,
complainant alleges that she was a victim of discrimination based on her
sex (female). As alleged, complainant's claims invoke the disparate
treatment theory of employment discrimination law. Accordingly,
complainant must first establish a prima facie case of discrimination.
If she establishes a prima facie case, the burden shifts to the agency to
articulate some legitimate nondiscriminatory reason for its challenged
action. Lastly, if the employer articulates a legitimate reason,
the burden shifts back to complainant to prove, by a preponderance
of the evidence, that the legitimate reason offered was not the true
reason, but was rather a pretext for discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
In order to establish a prima facie case of discrimination based on sex,
complainant must show that: (1) she is a member of a protected class; and,
(2) was treated less favorably than other similarly situated employees
outside her protected group. See Potter v. Goodwill Industries of
Cleveland, 518 F.2d 864, 865 (6th Cir. 1975). While comparative evidence
is usually used to establish disparate treatment, complainant need only
set forth some evidence of acts from which, if otherwise unexplained,
an inference of discrimination can be drawn. Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978).
We find that complainant has failed to establish a prima facie case of
sex discrimination because, while she has shown that she is a member
of a protected group (female), she has failed to show that a similarly
situated employee who was not a member of this protected group was
treated differently. Specifically, complainant has not provided
any evidence that she was treated less favorably than male employees.
Complainant does not proffer any evidence to support that a male employee,
who performed the same job function and came under the same manager's
supervision, was treated differently. See Jones v. United States
Postal Service, EEOC Request No. 05990092 (May 30, 2001). Furthermore,
complainant received several oral and written disciplinary actions while
on probationary status. The record reveals that males, as well as other
females in the Environmental Management Service, have been terminated
during their probationary status.
Throughout the record, complainant alleged that she was subjected to
a hostile work environment (harassment) because of her sex (female).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group
of isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all of
the circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993).
In order to establish a prima facie case of such harassment, the
complainant must prove, by a preponderance of the evidence, the existence
of five elements: (1) that she is a member of a statutorily protected
group; (2) that she was subjected to unwelcome sexual advances, requests
for sexual favors, or other verbal or physical conduct of a sexual nature;
(3) that the harassment of which she complained is based on sex; (4) that
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with her work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) that there is a basis for imputing liability to the employer.
Henson v. City of Dundee, 682 F.2d 987, 903-05 (11th Cir. 1982).
The harasser's conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim's situation. Enforcement Guidance
on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant asserted that S2 would continuously mention her �beautiful
smile� and would stare and watch her with a look of �desire� while she was
in a bent over position working (scrubbing floors), which made her feel
�uncomfortable�. We find that these allegations do not rise to the level
of harassment sufficient to trigger a Title VII violation. The incidents
which complainant has described are not sufficient to establish a hostile
work environment in that they are not �sufficiently severe or pervasive
to alter the condition of [her] employment and create an abusive working
environment.� Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(citing Meritor Savings Bank v. Vinson, 447 U.S. 57 (1986)).
Furthermore, complainant has presented no corroborating evidence that
these alleged incidents occurred. Complainant asserts that she reported
S2's actions to S1 and subsequently, S2 stopped watching her in the above
mentioned manner. Yet, S2 denies any knowledge of this allegation and
also denies that S1 brought this matter to his attention. Therefore,
the evidence of record fails to establish corroborating evidence that
the alleged harassment occurred.
Regarding Claim 3, a constructive discharge occurs when an employee
resigns from her employment because she is being subjected to unlawful
employment practices. If the resignation is directly related to the
agency's unlawful employment practices, it is a foreseeable consequence
of those practices and constitutes a constructive discharge. The agency
is responsible for a constructive discharge in the same manner that it is
responsible for the outright discriminatory discharge of a charging party.
In order to establish that she was constructively discharged from her
position, complainant must show: (1) that a reasonable person in her
situation would have found the agency's actions intolerable; (2) that
the agency's actions were discriminatory; and (3) that her resignation
resulted from the agency's actions. See Malpass v. Department of Veterans
Affairs, EEOC Request No. 05920527 (July 20, 1992). Therefore, in order
to establish that she was constructively discharged, complainant must
show that the agency's actions were discriminatory.
As discussed above the record does not support complainant's allegation
that she was subject to discriminatory action. Thus, complainant's
constructive discharge allegation fails, and the inquiry need not proceed
any further. See Alberta P. Gaskins v. United States Postal Service,
EEOC Appeal No. 01904229 (February 6, 1991).
After a careful review of the record, the Commission finds that the
decision of the AJ was appropriate. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to
be most favorable to complainant, we note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected class.
CONCLUSION
Based on a thorough review of the record and for the reasons cited
above, it is the decision of the Commission to AFFIRM the agency's final
decision and find that complainant has not established that the agency
discriminated against her as alleged.
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
____07-26-04______________
Date