01990870
09-24-2001
Nina J. Jodell, Rita A.Miles, Marie B. Lea, Gloria J.Bowman, Imogene D.Harold, Carolyn T.Barney, Betty J. Brown, Kathy T. Morgan, Mary R. Hazel, Mary M Corbin Complainants, v. Thomas E. White, Secretary, Department of the Army, Agency.
Nina J. Jodell et al. v. Department of the Army
01990870, et al.
September 24, 2001
.
Nina J. Jodell, Rita A.Miles, Marie B. Lea, Gloria J.Bowman, Imogene
D.Harold,
Carolyn T.Barney, Betty J. Brown, Kathy T. Morgan, Mary R. Hazel, Mary
M Corbin
Complainants,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 01990868, 01990869, 01990870, 01990871, 01990872,
01990873, 01990874, 01990875, 01990876, 01990877
Agency Nos. 9711H0460, 9711H0440,9711H0480, 9711H0420,
9711H0390 9711H0430,
9711H0410, 9711H0450, 9711H0470, 9711H0400
DECISION
INTRODUCTION
Complainants timely initiated separate appeals from final agency decisions
(FADs), all dated September 30, 1998, concerning their complaints 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 appeals were accepted pursuant to 29 C.F.R. � 1614.405.
The Commission is consolidating complainants' appeals pursuant to its
inherent authority. 29 C.F.R. � 1614.606.
ISSUE PRESENTED
Complainants alleged that they were discriminated against on the
basis of sex (female), when they were investigated by the Criminal
Investigative Division (CID) concerning possible abuse of overtime.
The complainants alleged that similarly situated male personnel underwent
no such investigation.
BACKGROUND
The record reveals that during the relevant time, complainants were
employed at the agency's Directorate of Contracting (DOC) at Fort Stewart,
Georgia.<1> The complainants were ten females who were investigated by
the CID for possible abuses of overtime.<2> The complainants alleged
that no males were investigated.<3> The ten women hired one attorney.
The agency consolidated the complaints for investigation and assigned
one investigator. A joint fact-finding conference was held because all
the complainants basically alleged the same facts. They identified two
male CID agents (JB and MC) as responsible for taking the action that
gave rise to their discrimination complaints.<4> One of the women (RM)
testified as spokesperson for the group.
The investigation began after an anonymous phone tip, in response to
an agency program called �Dial-the-Boss,� was referred to the CID.
The tip was from an anonymous caller who was identified as a female on
the report documenting the call. The caller stated that overtime was
being misused and abused by the supervisors and contracting specialists
in DOC and that more than $100,000.00 would be claimed as overtime.
The CID report of investigation stated that the CID had also interviewed
a �source� the day before the tip, who advised that some employees
spent an excessive amount of time in the DOC break room.<5> The source
stated that DOC employees were in a DOC office doing nothing while on
overtime.<6> Further the source stated that there were lax procedures
for requesting and receiving overtime pay. RM read the tip into the
record at the fact-finding examination and recognized that it addressed
all DOC employees. RM also testified that it was true that not many
men work at DOC.
The CID initiated an investigation as to whether False Official
Statement(s) or Theft(s) of Government Funds occurred by employees
while in the performance of their duties. A concern of the CID was
that because of questionable supervisory approval, employees may have
been receiving overtime pay for work which was not fully validated.
The CID sought a legal opinion from the Criminal Investigation Command.
The Group Judge Advocate advised that CID could install electronic
surveillance cameras, with no audio recording, in a government building
common area or offices to document activity which was the subject of their
investigation.<7> The CID set up a camera in an office and in the break
room in the basement of the DOC building which was used by employees.
The video in the office was removed after approximately two days because
it was unable to obtain a clear picture. The CID had two other cameras
but the older one experienced problems, so the CID decided to use just
one camera and decided to place the camera in the break room.
The break room was an area that could be used for smoking.<8> However,
it was a room that could also be used for business and where individuals
could smoke while working.<9> Special Agent MC testified that after the
source information and the tip, initially the investigation targeted
everyone in the DOC. After the initial investigation using the video
camera, the investigation was narrowed down to the ten people.
The camera was used for a period of one to two weeks, and it recorded
who went into and out of the break room from early in the morning until
late at night. Thereafter, the CID analyzed the films and identified
individuals who they believed were in the break room in excess of lunch
and break times.<10>
MC testified that when the investigation was continued it was not based
on what people were doing in the area, but was based on their mere
presence in the area.<11> MC testified that the break room was the
best place where they could obtain and determine who was not working.
MC testified that the area was a break area for everyone in the entire
building. After the investigation was narrowed, the CID talked to the
complainants, conducted some interviews, collected other evidence,
prepared cost avoidance calculation sheets, and coordinated with
other personnel. The complainants were not arrested, finger printed,
photographed, or charged with a crime. After consulting with a Special
Assistant U.S. Attorney, it was determined that since there was no sound
recording in the break room, it could not be determined if the women were
taking a break or working. Eventually, the investigation concluded and
the allegations were reported as unfounded.
Believing they were victims of discrimination, complainants sought
EEO counseling and each subsequently filed a timely formal complaint.
At the conclusion of the investigation, complainants were informed of
their right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency by letter to
complainants' attorney, with a copy to each complainant. The attorney
was mailed the report of investigations and advised that each complainant
had thirty calendar days from the receipt of the notice to request a
hearing before an EEOC Administrative Judge. The record reflects that
the complainants' attorney requested hearings 16 days late.
When complainants failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a FAD to each complainant .
In each FAD, the agency concluded that the complainant had established
a prima facie case of discrimination on the basis of sex, but that the
agency rebutted complainant's prima facie case by articulating legitimate,
nondiscriminatory reason for its action, and that the complainant did
not show that the agency's reason was a pretext for discrimination.
On appeal, neither the agency nor the complainants submit any new
contentions.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). For the complainants to prevail, they must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then
shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainants bear the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis
of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). This established order of analysis in discrimination cases,
in which the first step normally consists of determining the existence
of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Serv.,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of this decision, the Commission accepts the FADs'
determination that each complainant established a prima facie case
of sex discrimination. Therefore, the burden shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its action.
Here, in response to complainants' claims of discrimination, the
agency presented evidence that the investigation was initiated due to
an interview with a CID source and anonymous tip, both of which did
not reference gender. The record reflects that CID is obligated to
investigate all criminal allegations. The CID initially included men and
women in their investigation. The agents denied targeting females in
their investigation. The evidence showed that the break room was open
to all in the building and that the motivation to investigate the women
was due to the fact that women appeared to be exceeding break times.
All that used the break room were video taped and therefore under the
same surveillance. JB testified that CID picked a non-gender specific
area to place the camera. Initially CID wanted to set up six cameras
but was only able to utilized one working camera. MC testified that
the camera was used in the break room because he knew that the break
room was frequented by DOC employees.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was pretext for discrimination.
Complainant contends that the CID set up the surveillance in a break
room 1) known by the agent MC to be frequented primarily by women, and 2)
that statistically, males used more overtime than women.
The break room was available to anyone in the building and was not posted
for women. A far greater number of women worked in the building and
therefore a far greater number of women used the break room. The video
cameras taped all employees as they entered and left the break room.
There was no evidence that the agents taped only women. There was
no evidence that the agents had control over who would go into the
break room. The follow up aspects of the investigation were based
on who appeared to be in the break room for excess periods of time.
The agent MC testified that there were very few males in the tapes and
that no men exceeded their authorized break times. The record does
not reflect that the agents' actions were motivated by a discriminatory
animus toward complainants' gender.
The complainants' statistics show that females comprise 84.78% of the
DOC workforce and account for 84.74 % of overtime/comp.time. DOC was
composed of mostly women and the smokers were almost exclusively women.
There were only two males that took smoke breaks. One was a military
employee and therefore excluded from the investigation. The other
male was the director who might have quit smoking at that time.
The complainants also argued that other males smoked on the front porch
of the building and were not video taped. However, these males were
in other directorates. The Commission and the courts have held, that
while statistics are relevant, statistics alone, especially if they are
generalized and over broad, will not be sufficient to prove pretext. in
individual complaints of disparate treatment, even if those statistics
establish a meaningful disparity. See, e.g., Stevens v. EEOC, EEOC Appeal
No. 01970848 (August 14, 1997); Talley v. United States Postal Service,
720 F.2d 505, 508 (8th Cir. 1983), cert denied 466 U.S. 952 (1984);
Hudson v. IBM Corporation, 620 F.2d 351, 355 (2d Cir.), cert denied 449
U.S. 1066 (1980). The statistics are insufficient to prove pretext.
We therefore find that complainants' statistics are not sufficient to
prove discriminatory motivation.
The record supports the agency's conclusion that the complainants have
failed to provide sufficient evidence to show that the motivation to
conduct the investigation was based on gender. The Commission finds
that the complainants failed to present evidence that more likely than
not, the agency's articulated reason for its actions were a pretext
for discrimination. The complainants failed to show that the agency's
actions were motivated by a discriminatory animus toward their sex.
The complainants have not shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination.
Therefore, after a careful review of the record, 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
September 24, 2001
Date
1Five of the complainants were Contract Specialists, one was a Lead
Purchasing Agent, one was a Supervisory Purchasing Agent, one was
a Procurement Technician, one was a Purchasing Agent, and one was
a Contract Administrator.
2An eleventh woman was initially investigated but not interviewed,
since she was granted administrative sick leave during the relevant time.
For purposes of this decision the group will be referred to as consisting
of ten women.
3In 1997, there were no other particular investigations regarding the DOC.
4The CID is the sole agency within the United States Army responsible
for investigation of felony crime and their agents are authorized to
investigate any alleged criminal conduct unless prohibited by law or
higher authority. The CID agents are law enforcement officers. CID is
obligated to look at all allegations and it does not have the option of
declining to conduct an investigation.
5The record does not reflect if the source and the caller of the tip is
the same person.
6Agent JB testified that the source was �registered.� Registration was
not explained.
7A subsequently dated memorandum from the Chief, Administrative Law
Division recommended that cameras be located in common areas rather than
inside individual offices.
8There was testimony that the room was not a break room, but a designated
smoking area. For purposes of this decision the room will be referred
to as a break room.
9The Director of DOC testified that working in the break room was
tacitly approved.
10The Report of Investigation states that the CID plan may not have
been the wisest approach. The FAD stated that the procedures used by
the CID in the course of the investigation may be questioned.
11There were allegations that the complainants were investigated because
they were smokers