01A12206
09-18-2002
M. Inez Tyson, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
M. Inez Tyson v. Department of the Army
01A12206
September 18, 2002
.
M. Inez Tyson,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A12206
Agency Nos. AJAG-F-9804-I-0090; AJAG-F-9804-I-0100
Hearing Nos. 120-99-6760X; 120-99-6761X
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. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a former Secretary (GS-4) at the
agency's Office of Equal Employment Opportunity, Aberdeen Proving Ground,
Maryland facility, filed a formal EEO complaint on November 21, 1997,
alleging that the agency had discriminated against her on the bases of
race (African-American), color (black), sex (female), and reprisal for
prior EEO activity when:
(1) she was not granted an upgrade after a desk audit in 1997;
(2) she was given a lower performance appraisal in September 1997.<1>
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 established a prima facie case of
reprisal discrimination because she engaged in protected EEO activity in
late 1996 or early 1997 by providing testimony in an EEO case. The AJ
found that complainant's supervisor (S) knew about complainant's testimony
and that complainant received adverse treatment when she received a lower
performance evaluation in September 1997. The AJ concluded, however,
that the agency stated legitimate non-discriminatory reasons for the
lower performance evaluation which were not shown to be a pretext for
discrimination.
Specifically, the AJ found that S was credible in stating that
complainant's work performance had deteriorated during the appraisal
period, that she made mistakes in sending files and correspondence to the
wrong offices, that customers complained about complainant's work, that
complainant had poor rapport with her co-workers and that complainant
made frequent mistakes in keeping S's calendar. The AJ also found S
to be credible in his testimony that complainant committed security
breaches by disclosing confidential documents to persons outside of the
EEO office. The AJ found that complainant's assertion that S also took
EEO files out of the office did not rebut the fact that her failure to
follow confidentiality guidelines contributed to her lower performance
evaluation. The AJ found complainant's co-workers to be credible in
stating that complainant was difficult to work with because of her
attitude and her intimidating behavior. The AJ rejected complainant's
argument that all of her co-workers had reasons to lie and were only
interested in supporting S to further their own interests.
The AJ concluded that complainant did not establish she was treated
differently based on her race, color, or sex. He found that although
her co-workers were all Caucasian, she was unable to show with respect
to her evaluation, she was similarly situated to them because they were
EEO specialists at higher grade levels. In any event, the AJ determined
that complainant's evaluation was based on legitimate non-discriminatory
reasons not shown to be a pretext for discrimination.
Regarding the desk audit complainant requested in 1997, the AJ
determined that complainant failed to prove that S deliberately delayed
the processing of the audit for discriminatory reasons. In addition,
the AJ concluded that S was credible in stating that complainant's
duties were reduced because of her breach of office security and not to
undermine her success in the desk audit. The AJ rejected complainant's
claim that the decision to maintain the classification of her position
as a GS-4 was discriminatory as an improper collateral attack on a
classification decision.
The agency's final order implemented the AJ's decision.
On appeal, complainant claims that the AJ was part of a conspiracy to
subject her to discrimination and that the investigation was performed
in an unsatisfactory and biased manner. She restates many of the same
arguments previously made at the hearing regarding the propriety of
the investigation regarding security breaches in the EEO office and her
view that S lacked credibility. She reiterates that she was subjected
to reprisal because S tried to persuade her not to testify on behalf of
another employee in June 1997. She contests the AJ's ruling dismissing
her claim of harassment as moot and states that the agency is liable
for management's failure to take corrective action in response to
her complaints. The agency rests on the position it took in its final
decision, and requests that we affirm its final order.
ANALYSIS AND FINDINGS
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
The Commission finds no support for complainant's allegation that the
AJ conspired to perpetuate the alleged discrimination against her.
The AJ made a number of credibility findings which complainant continues
to dispute on appeal in an effort to show that the agency's reasons for
taking the actions at issue were a pretext for discrimination. We are not
persuaded, however, that the AJ's credibility findings were not supported
by the evidence and should be overturned. Consequently, we affirm the
AJ's determination that S's reasons for lowering complainant's performance
rating were credible based on a deterioration of her performance and
her inability to work amicably with her office mates. Based on a review
of the evidence, the AJ relied on substantial evidence in the record to
conclude that complainant failed to demonstrate that S's reasons were
a pretext for discrimination or were based on discriminatory animus.
Similarly, the AJ's conclusion that complainant's desk audit was not
unduly delayed because of discrimination was based on substantial evidence
in the record and for that reason we decline to overturn it.
Complainant argues that she was subjected to harassment and that the AJ
exhibited bias in not finding in her favor. Even assuming that the AJ
erred in dismissing this claim, our review of the evidence indicates that
substantial testimony and other evidence was admitted into the record
regarding alleged statements and actions of S and other management
officials.<2> To establish a claim of harassment based on race, sex,
disability, age, or reprisal, complainant must show that: (1) she is
a member of the statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
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). Further, the incidents must have been "sufficiently severe
and pervasive to alter the conditions of complainant's employment and
create an abusive working environment." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,
Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor,
complainant must also show that there is a basis for imputing liability
to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).
Our review of the evidence in its entirety leads us to conclude that
complainant has not shown by a preponderance of the evidence that she was
subjected to unlawful harassment. Complainant's evidence consisted of
S's delay in processing her desk audit, his issuance of a low performance
appraisal, an investigation into security breaches and evidence that
she met with S's supervisors regularly about her conflicts with him.
Having already concluded that the desk audit was not delayed due to
discriminatory animus and that complainant's performance appraisal was
not motivated by discrimination, we are left with complainant's frequent
meetings with S's supervisors about her encounters with him and the
investigation into the security breaches. We conclude that complainant
has not shown that her frequent conflicts with S or the investigation
into security breaches were motivated by her race, sex, color or her
prior EEO activity. The evidence establishes that complainant had
difficulty getting along with everyone in the EEO office and that she
had personality clashes with S. Although complainant claims that all
of her co-workers as well as S were untruthful and acted as a group to
harass her, this is not borne out by the evidence.
CONCLUSION
Therefore, based on the foregoing, we discern no basis to disturb the
AJ's decision. We conclude, 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,
that the AJ's conclusion finding no discrimination were correct and we
AFFIRM 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
September 18, 2002
__________________
Date
1Complainant's claim of hostile work
environment was dismissed along with her claim for compensatory damages.
Complainant dropped several additional claims surrounding her detail out
of the EEO office in 1997 and denial of training opportunities during
the fact finding conference.
2The AJ dismissed complainant's claim of hostile work environment based
on mootness. He also dismissed complainant's claim for compensatory
damages because she failed to comply with his pre-hearing order to
outline her evidence supporting her claim. The AJ has discretion
regarding pre-hearing discovery and other matters which we decline to
overturn absent abuse of discretion. See EEOC Management Directive 110
Chapt. 7-8 to7-9 (1999).