01a44010
11-04-2004
Pamela Robinson, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Pamela Robinson v. Department of the Army
01A44010
November 4, 2004
.
Pamela Robinson,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A44010
Agency No. ARARCFO02050001
Hearing No. 140-2003-08313X
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, during the relevant period, complainant was
employed as a DK-0303-02, Administrative Support Assistant at the agency's
Research Laboratory facility in Research Triangle Park, North Carolina.
Complainant filed a formal EEO complaint on May 14, 2002, alleging that
the agency had discriminated against her on the bases of race (African
American), color (black), sex (female), and in reprisal for prior EEO
activity when:
(1) since fiscal year 1995, she has provided support to nine program
managers in the Mechanical and Environmental Sciences Division while
other Administrative Support Assistants typically support four or five
program managers;
in March 1996, a general engineer (CW1: Caucasian male, no known prior
EEO activity) asked another employee to perform duties for which she
was responsible;
on October 21, 1996, CW1 laughed at her and made the statement: it will
be a very long time before you receive an award;
during a six-month period in 1996/1997, she did not receive an award
for serving as a back-up timekeeper for the physics division while the
secretarial position was vacant, but other employees who helped out did;
in June 2001, she was not publicly recognized for her work (along with
two other African American females) on a Technical Coordinating Group
(TCG) meeting while a non-African American female who worked on a
similar project received a certificate and public recognition;
in September 2001, she was harassed by an Associate Director (Caucasian
male, no known prior EEO activity) regarding tracking funds that
were transferred between cost centers within the Engineering Sciences
Directorate;
in November 2001, her second level supervisor (S2: Asian/Pacific Islander
male, no known prior EEO activity) gave her an unfair performance rating
for the period October 1, 2000 to September 30, 2001;
in December 2001, her first level supervisor (S1: Caucasian male,
no known prior EEO activity) continually harassed her for refusing to
sign her performance appraisal;
in December 2001, a meteorologist (CW2: Caucasian male, no known prior
EEO activity) entered her work station and hit her at least seven times
in the back;
on or about January 16, 2002, she was subjected to disparaging remarks
from S1 after she notified him that she planned to talk to S2 concerning
the incident with CW2 in December 2001;
on January 31, 2002, while in her presence, CW2 placed his hand inside
his pants in an inappropriate manner;
in January 2002, CW1 directed a contract employee to assign work to
her which was contrary to agency procedure;
in February/March 2002, two engineers (Caucasian males, no known prior
EEO activity) made harassing comments and gestures in reference to the
matter she raised involving CW2; and,
on May 1, 2002, a geologist (Caucasian male, no known prior EEO activity)
yelled at her and told her to get out of his office during a discussion
on the use of Historically Black Colleges and Universities' funds.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that based upon the totality of the evidence and in
a light most favorable to complainant, the evidence does not support
that complainant was discriminated against, as alleged. The AJ found
that even assuming, arguendo, complainant met her initial burden of
establishing a prima facie case, the agency provided an explanation for
its actions or denied the claim. The AJ also found that complainant
failed to offer any persuasive evidence to support a finding of pretext.
The AJ further found that complainant did not show that she had been
subjected to a hostile work environment.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends, among other things, that the material facts
pertaining to her case are in genuine dispute. In response, the agency
requests that we affirm its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case can
only be resolved by weighing conflicting evidence, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider a decision without a hearing
only upon a determination that the record has been adequately developed
for summary disposition.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of race, color, religion, sex, national origin,
or retaliation. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
In Trammel v. United States Postal Service, EEOC Appeal No. 01871154
(May 10, 1988), the Commission stated that to demonstrate a prima
facie case of a hostile working environment complainant must show: (1)
that she belongs to a protected group; (2) that she was subjected to
unwelcome harassment; (3) that the harassment complained of was based on
her protected status; (4) that the harassment affected a term, condition
or privilege of employment; and, (5) that the agency knew or should have
known of the harassment.
In determining whether a working environment is hostile, factors to be
considered are the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). The Commission
notes that unless the conduct is severe, a single group of isolated
incidents will not be regarded as discriminatory harassment. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). That is, the
conduct at issue must be sufficiently pervasive and must be directed at
the employee because of her membership in a protected group.
Although complainant identified a series of events and circumstances she
found to be unpleasant or demeaning, these appear to us to result from the
sort of unremarkable disappointments and disagreements that inevitably
occur in the workplace. They are not so severe or pervasive to entitle
complainant to relief under the federal employment discrimination laws.
See Lynch v. United States Postal Service, EEOC Appeal No. 01981027
(July 16, 1999). As a matter of law, if the conduct at issue is not
sufficient to render the work environment hostile, then no reasonable
fact-finder could find in complainant's favor.
After a careful review of the record, the Commission finds that grant of
a decision without a hearing was appropriate, as no genuine dispute of
material fact exists. We find that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. In reaching this conclusion, the Commission finds that the
preponderant evidence does not show that any of the agency's actions
were based on complainant's race, color, sex or in reprisal. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes or retaliatory motive.
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
November 4, 2004
__________________
Date