M. Inez Tyson, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A12206 (E.E.O.C. Sep. 18, 2002)

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).