01A20888
03-05-2003
Monica C. Clansy, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Monica C. Clansy v. Department of the Navy
01A20888
3/5/03
.
Monica C. Clansy,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A20888
Agency No. DON-0061581-006
Hearing No. 370-01-X2127
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, an Office Automation Clerk at
the agency's Naval Air Facility, in Atsugi, Japan, filed a formal EEO
complaint on January 27, 2000, alleging that the agency had discriminated
against her on the bases of race (African-American) and sex (female)
when she was not selected for the position of Public Affairs Specialist,
GS-1035-7/9.
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 race and sex discrimination because the selectee,
not in complainant's protected class, was chosen for the position.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
selecting official testified at the hearing that she chose the selectee
for the position because of his prior experience and qualifications in
the video and broadcast aspects of the position. In that regard, the
selecting official testified she had been informed by her commanding
officer to make the Base Information Channel (BIC) a priority, and
therefore, chose the selectee to further that goal. The AJ noted that
the selectee's application revealed that he was observably more qualified
than complainant in the broadcast area, and had been responsible for a
base-wide television channel at another military base.
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. In reaching this conclusion, the AJ found that the
selecting official had selected complainant for a temporary position
within her office only a short time before the selection at issue
occurred.<1> As such, the AJ was not persuaded that the same selecting
official would select complainant for a position, only to discriminate
against her a short time later.
The AJ also was not persuaded by complainant's evidence that the selecting
official harbored a discriminatory animus against complainant because
of her race. In that regard, complainant testified that the selecting
official once asked her about her bathing habits, referred to a suit worn
by her husband as similar to those worn in the 1970's show "Laugh In,"
and expressed her opinion that there was no racism at the military base.
Furthermore, complainant called two corroborating witnesses who testified
that they heard the selecting official refer to African-Americans as
"those people," was critical of the Martin Luther King, Jr. holiday,
and rejected an article about Black sports figure Josh Gibson during
Black History Month.
Notably, however, the AJ found that neither witness actually testified
that they believed complainant was not selected for the position because
of her race. Furthermore, the AJ found that the selecting official's
testimony explaining the remarks was sincere and persuaded him that
they were not racist statements, and may have been taken out of context.
Specifically, the AJ found that the selecting official denied that she was
ever critical of the Martin Luther King, Jr. holiday, and only remarked
that she was tired of attending all the special emphasis programs,
which was required of her position. Furthermore, the selecting official
stated she initially rejected the Josh Gibson article because, among other
reasons, it had grammatical errors. After editing of the article, it was
printed in the agency's newsletter. As for the statement about bathing
habits, the selecting official testified that she was approached by two
African-American women, and asked about bathing habits. The selecting
official explained she was merely retelling the story, which the selecting
official herself found strange. In sum, the AJ found that complainant's
interpretation of the remarks as racist was not convincing.
On October 31, 2001, the agency issued a final order that implemented
the AJ's decision.
On appeal, complainant contends, through her attorney, that the AJ
erred when he failed to examine the allegations of racial bias as direct
evidence of discrimination. Furthermore, complainant argues that the AJ
should have considered the evidence of bias even though the selecting
official did not make any racially biased comments directly related to
the selection at issue. Furthermore, complainant maintains that the
AJ erred when he failed to consider the amendment of the complaint to
include a hostile work environment claim, and failed to approve one of
complainant's witnesses. Finally, complainant states that the AJ erred
in determining that the reasons for the nonselection were not credible.
Instead, she claims there was insufficient corroborating support for
the selecting official's decision to place emphasis on the BIC, and that
the selectee was not more qualified than complainant for the position.
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.
As for complainant's claim that the AJ erred in not analyzing the case as
a direct evidence case, we note that direct evidence of discrimination
may include any action, or any written or verbal policy or statement
made by an agency official that on its face demonstrates a bias against
a protected group and is linked to the complained of adverse action.
Jaakkola v. Department of Commerce, EEOC Request No. 05950390 (August 29,
1996); see, e.g., Grant v. Hazelett Strip Casting Corp., 880 F.2d 1564,
1569 (2d Cir. 1989) (direct evidence of age discrimination found where
decision maker said in a memo that he wanted a "young man ... between
30 and 40 years old" and verbally that he wanted "a young man and that's
what I want and that's what I'm going to have").
Here, complainant's allegations, which could be argued as evidence of a
racial bias, are not linked to the adverse actions. Therefore, the AJ
correctly applied the in McDonnell Douglas v. Green, 411 U.S. 792 (1973),
burden shifting analysis. As an initial matter, we note that where the
credibility of the relative parties is critical, we must rely heavily upon
the factual findings of the AJ. See EEO Management Directive-110 (November
9, 1999), at 9-16 (explaining that any "credibility determination of an
[a]dministrative [j]udge based on the demeanor or tone of voice of a
witness will be accepted unless documents or other objective evidence so
contradicts the testimony of the witness or the testimony of the witness
otherwise so lacks in credibility that a reasonable fact finder would
not credit it"). In this case, we find that the AJ's interpretation of
the selecting official's explanations, when considered with her demeanor
and sincerity, was a reasonable one. Therefore, complainant failed
to establish that it was erroneous to find the remarks as insufficient
evidence of a discriminatory animus.
Furthermore, we also find support for the AJ's determination that it was
unlikely for the selecting official to harbor a discriminatory animus
against complainant when she selected complainant for a position only a
short time earlier. Complainant failed to present sufficient evidence
that the agency was not interested in placing emphasis on the BIC,
or that complainant's qualifications were are observably superior to
those of the selectee. See Bauer v. Bailor, 647 F.2d 1037, 1048 (10th
Cir. 1981) Williams v. Dept. of Education, EEOC Request No. 05970561
(August 6, 1998).
Finally, we will address complainant's claim that the selecting official
subjected complainant to a hostile work environment. To establish a
prima facie case of hostile environment harassment, the complainant must
show that: (1) she belongs to a 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; (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; and (5)
there is a basis for imputing liability to the employer. See McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
After a review of the record, we find insufficient evidence that the
comments were made because of complainant's race, or that they resulted
in a hostile or offensive working environment.
Accordingly, we discern no basis to disturb the AJ's decision. 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
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
3/5/03
Date
1The record reveals complainant turned down the position because of the
effect a temporary position would have on her benefits.