01A10506
07-12-2002
Marta Garwolinski, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.
Marta Garwolinski v. Army Air Force Exchange Service
01A10506
July 12, 2002
.
Marta Garwolinski,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Appeal No. 01A10506
Agency No. AAFES 00.017
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 decision.
The record reveals that during the relevant time, complainant was
employed as an Operations Manager at the agency's Bolling Air Force Base
Exchange, Washington, D.C. facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on October 29, 1999, alleging
that she was discriminated against on the bases of race (Caucasian)
and color (white) when:
(1) she was belittled by her supervisor and otherwise subjected to
harassment;
(2) she was given a low Performance Incentive Evaluation (PIE) in 1999;
(3) she was not paid for work on holidays and was given an unfair
work schedule;
(4) she was constructively discharged in October 1999.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
Complainant requested that the agency issue a final decision.
In its final decision, the agency concluded that complainant was
not subjected to harassment based on her race or color because in
complainant's own statement she stated that others not in her protected
class were treated in the same manner. The agency also relied on the
statements of two other managers, one Caucasian and the other African
American, who confirmed that complainant's supervisor (S1) treated
everyone in a hostile manner, not just complainant. According to the
agency, the other managers subordinate to S1 were also expected to work
more hours or were not paid for work performed on holidays or on off days.
Based on this evidence, the agency concluded that S1 was a poor manager
and not people-oriented, but that complainant did not establish that S1
was motivated by complainant's race or color.
On appeal, complainant contended that S1 was known to be tactless to
peers and even customers but that S1's actions towards her were more
severe because they occurred every day and in front of other associates
and customers. Complainant argued that because S1's treatment of her
was much worse than her treatment of others, S1 must have been motivated
by her race and color.
The agency raised the same facts on which it based its final decision
and requests that we affirm its decision finding no discrimination.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging disparate treatment discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973).
Complainant has the initial burden of establishing a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802. If complainant meets
this burden, the burden then shifts to the agency to articulate some
legitimate, nondiscriminatory reason for its challenged action. Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was a pretext for discrimination. Id. at 256.
Although the Commission finds that complainant properly established a
prima facie case of discrimination with respect to her evaluation, we also
find that complainant failed to present evidence that more likely than
not, she was subjected to discrimination on any of the issues she raised.
Complainant alleged that she was subjected to a hostile work environment
in that S1 belittled her in front of her co-workers. She also alleged
that she was treated less favorably when she was not paid for working
on a holiday when others were, and when she was required to work 4 out
of 5 nights per week. Complainant alleged that she was given a low
evaluation in 1999 because of her race and color and, finally, because
of all of these factors and the level of hostility directed at her,
her resulting resignation amounted to a constructive discharge.
Complainant may sustain a Title VII cause of action of harassment if
the discriminatory conduct was so severe or pervasive that it created
a hostile work environment on the basis of her race, color, gender,
religion, sex, national origin or retaliation. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3,
6; Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
In determining whether or not a hostile environment violates Title VII,
our regulations require that "...the challenged conduct must not only
be sufficiently severe or pervasive objectively to offend a reasonable
person, but also must be subjectively perceived as abusive by the charging
party." EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance
on Harris v. Forklift Systems, Inc.at 7.
Applying these principles to the facts in this case, we conclude that
complainant did not establish that S1 was motivated by discrimination
in the actions at issue. We note complainant's own testimony in which
she stated that others outside of her protected group were treated the
same way that she had been with respect to being denied holiday pay
and being subjected to harassment at the hands of S1. Although on the
particular holiday in question, complainant was the only one not paid,
the evidence as a whole indicated that none of the managers were paid
for holidays at various times during the year. Therefore, it cannot
be concluded that S1's actions on this particular day were motivated by
discrimination on the bases alleged.
The testimony of the Human Resources Manager (H1) confirmed that the
entire staff was afraid of S1 and that S1 treated them all like they
were �idiots�, and that she yelled, screamed and hollered at them.
Another manager (Asian) employed as a sales area manager testified that
S1 belittled her as well and that S1 created an uncomfortable environment
for all the employees. She too relayed that S1 expected her to work
long hours and on her off days. This was reiterated by other managers,
both those within complainant's protected class and those outside of
her protected class.
Complainant's successor in her position as Operations Manager (African
American; black) testified that she had not been paid for working on
her off days and was required to work 4 out of 5 nights a week, the same
unfavorable schedule given to complainant. Based on this evidence, we
conclude that complainant failed to show that the incidents she alleged
as constituting harassment and disparate treatment were not based on a
discriminatory motive.
We also conclude that complainant's claim that her low evaluation in
1999 was not motivated by discrimination. Complainant's rating was lower
than the other managers, but a manager who is a member of her protected
class was among those who received higher ratings. Therefore, based on
the evidence discussed above and viewing all the evidence as a whole,
complainant failed to show by a preponderance of the evidence that her
rating was motivated by discriminatory animus.
Finally, we conclude that complainant failed to meet her burden of
proof with respect to her claim of constructive discharge. Constructive
discharge requires a showing that: (1) the employer subjected an employee
to working conditions that a reasonable person in the employee's position
would find intolerable; (2) discriminatory conduct created the intolerable
working conditions; and (3) the employee resigned involuntarily as a
result of the intolerable working conditions. See Ward v. Department of
the Navy, EEOC Appeal No. 01994334 (December 21, 2001);(citing Harrell
v. Department of the Army, EEOCRequest No. 05940652 (May 24, 1995).
The Commission has found that the agency's actions in this case were not
based on discriminatory motives. Consequently, complainant's claim of
constructive discharge must also fail.
CONCLUSION
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 decision.
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
July 12, 2002
__________________
Date