01981005
10-19-2001
Lisa J. Miller, Complainant, v. Thurman M. Davis, Sr., Acting Administrator, General Services Administration, Agency.
Lisa J. Miller v. General Services Administration
01981005
10-19-01
.
Lisa J. Miller,
Complainant,
v.
Thurman M. Davis, Sr.,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 01981005
Agency No. 963700005
Hearing No. 310-97-5080X
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, as amended, 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 on the bases of sex (female) and reprisal (prior
protected activity under Title VII) when:
(1) on November 29, 1995, she was reassigned to Realty Branch 1 after
failure to settle her informal EEO complaint;
(2) she was assigned projects which were under the direct supervision of
WM prior to being reassigned to Branch 1, which hampered the processing
of her projects due to delays by WM;
(3) she was not recommended as a Warranted Contracting Officer (WCO)
although she had been qualified since 1994;
(4) other employees were offered WCO training in Florida, but she was
not nominated to attend;
(5) her second-line supervisor, LM, sent an e-mail message to all
employees regarding appropriate dress, which complainant states was
directed at her;
(6) objectionable material<1> was left on her desk and, when informed,
management took no action;
(7) a coworker used offensive language to her and, when informed,
management took no action;
(8) an unfair assignment of projects denied her any possibility of
awards and special recognition; and
(9) she was subjected to physical and emotional harassment as an employee
of WM.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Realty Specialist, GS-12, at the
agency's Fort Worth, Texas facility, filed a formal EEO complaint with the
agency on December 19, 1996, 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 had failed to establish a prima facie
case of either sex or reprisal discrimination with regard to several
of her allegations, but noted that the agency nonetheless proffered
explanations for its actions:
(1) Complainant was reassigned because she had previously expressed
interest in working for another manager, and it was thought that
reassignment would resolve the conflicts between complainant and WM
and her coworkers.
(2) Delays in complainant's assignments were caused by the need for WM
to review and re-write complainant's work.
(3) WM did not recommend complainant as a WCO because he did not believe
complainant possessed the necessary independence and business judgment
to fulfill the duties of a WCO.
(4) WM offered WCO training in Florida to all of his employees,
but complainant did not respond to the offer. WM noted that even if
complainant had requested the training, her request would have been
denied because she had already attended WCO training.
(5) LM stated that he sent the e-mail message regarding appropriate
dress because he had noticed a deterioration in employees' �Casual
Friday� dress over a period of several months. LM denied that the
e-mail message was directed at complainant.
(6) Regarding the use of offensive language, LM stated that the incident
involved an unwitnessed altercation between complainant and a coworker,
who gave opposite accounts of what had happened and who had used the
offensive language.
(7) Regarding the �offensive material,� which consisted of a liquor
ad and of the word �bitch� allegedly typed on complainant's computer
screen by another employee, LM stated that he had no way of knowing
who had done so, and that he thought that complainant's problems with
her coworkers would be resolved by her reassignment.
Although not directly addressed in the AJ's decision, the record reflects
the agency's further explanations for its actions:
(8) Specialists are assigned geographic areas and, accordingly, are
assigned projects that arise within their designated geographic areas,
with an attempt to balance the number of leases and square feet of
space involved among the various Specialists in each branch; further,
complainant did receive several awards.
(9) The only specific incident identified by complainant regarding
harassment during the time frame at issue (May through December 1995)
was when WM made a comment to complainant which she construed as WM
implying that she was an �airhead.� WM did not address this incident,
but denied having physically or emotionally harassed complainant.
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. The agency's final order adopted the AJ's
decision.<2> Neither the complainant nor the agency submitted a statement
in support of its position on 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, with
regard to Issues 1 through 7, the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. It is noted 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 sex. The Commission discerns no basis to disturb the AJ's
decision with regard to Issues 1 through 7.
As noted above, the AJ's decision did not directly address Issues 8 and 9.
With regard to Issue 8, assuming for the sake of argument that complainant
had established a prima facie case of sex and reprisal discrimination,
the agency's proffered explanation is sufficient to meet its burden
of proof. Complainant has not come forward with any evidence to support
her assertion that the agency's decisions regarding her assignments were
motivated by either her sex or her prior protected activity.
With regard to Issue 9, an employer who creates or tolerates a work
environment which is permeated with "discriminatory intimidation,
ridicule, and insult" that is "sufficiently severe or pervasive to alter
the conditions of the victim's employment" is in violation of Title VII.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) (citing Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986)). The conduct in question
is evaluated from the standpoint of a reasonable person, taking into
account the particular context in which it occurred. Highlander v. KFC
Management Co., 805 F.2d 644 (6th Cir. 1986). Unless the conduct is
very severe, a single incident or a group of isolated incidents will
not be regarded as discriminatory treatment. Walker v. Ford Motor Co.,
684 F.2d 1355 (11th Cir. 1982). Complainant specifically identified
only one incident involving WM during the relevant time frame, when WM
uttered a remark which complainant construed as implying that she was
an �airhead.� Even taking all of WM's actions together, the Commission
is not persuaded that his conduct during the relevant time frame was so
severe as to alter the conditions of complainant's employment. Further,
the evidence of record does not support a finding that this or any other
of WM's actions at issue herein was motivated by discriminatory animus.
As noted, the Commission finds no basis to disturb the decision of the
AJ with regard to Issues 1 through 7. Further, the Commission finds that
complainant has not established her claims of discrimination with regard
to Issue 8 and 9. Therefore, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, the Commission AFFIRMS the agency's final order.
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
__10-19-01________________
Date
1The Administrative Judge's decision refers to this material as being
sexual in nature. The record reflects, however, that the material in
question was a liquor ad which addressed the effect of business attire,
and was not sexual in nature.
2Under the Commission's regulations then in effect, the agency could
accept, reject, or modify the decision of the Administrative Judge.
Under the Commission's revised regulations, however, the decision of the
Administrative Judge is binding on both parties, subject to the right
of appeal to the Commission.