01a24026
07-20-2004
Patricia A. White, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Patricia A. White v. Department of the Navy
01A24026
July 20, 2004
.
Patricia A. White,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A24026
Agency No. 00-42237-006
Hearing No. 110-A1-8201x
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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 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 Police Officer, GS-083-05 at
the agency's Naval Submarine Base, Kings Bay, Georgia facility, filed a
formal EEO complaint on September 7, 2001, alleging that the agency had
discriminated against her on the bases of race (African-American), sex
(female), disability (hypothyroidism and reactive depression) and in
reprisal for prior EEO activity when:
(1) On July 12, 1999, she was rated as not meeting the Employee Interacts
Work Plan objective on her performance appraisal;
On August 2, 1999, her Continuation of Pay (hereinafter "COP") claim
was controverted;
On December 20, 1999, she was assigned to the night shift, not allowed
to carry a weapon, had issues regarding her security clearance and was
denied time off for an EEO and OWCP matter;
On December 22, 1999, she was required to qualify with her weapon;
On April 12, 2000. she witnessed a racially insensitive email;
On May 11, 2000, she guarded a display without a weapon;
On May 12, 2000, she was denied official time for an EEO pre-hearing;
On May 25, 2000, she was denied time off for an EEO hearing.
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 agency's final order implemented the
AJ's decision. Complainant makes no new contentions on appeal, and 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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
The AJ found that complainant did not establish a prima facie case
of harassment. Specifically, the AJ determined that the matters
identified in the captioned complaint did not rise to a level that was
severe, pervasive, or altered the terms and conditions of complainant's
employment. The AJ also found that complainant did not establish a
prima facie case of discrimination under the Rehabilitation Act.
The AJ found that complainant could not establish a claim of disparate
treatment on the basis of race or sex, or reprisal because she failed
to establish a prima facie case of discrimination. The AJ determined
that if complainant had established a prima facie case, the agency
articulated legitimate, non-discriminatory reasons for its actions,
which complainant did not establish were a pretext for discrimination.
Specifically, the agency indicated that in 2001, complainant was rated
as not meeting her job requirements due to repeated arguments with
her supervisor and co-workers. Regarding complainant's continuation
pay claim, the agency indicates that despite being advised that
she incorrectly completed the paperwork to receive continuation pay,
complainant never resubmitted her forms. The agency further indicated
that agency policy prohibits complainant from carrying a weapon until she
is taken off doctor's care and released for full duty. Complainant failed
to submit medical documentation releasing her to full duty status which
would, therefore, enable her to carry a weapon pursuant to agency policy.
Regarding complainant's security clearance, the agency indicated that
complainant failed to provide the appropriate medical and financial
documentation to qualify her for a full security clearance.
The AJ found from evidence in the record that the agency took
immediate corrective action to eliminate the offensive email and
counsel responsible employees accordingly, including sending an email
to all employees regarding the impropriety of the offensive email.
Finally, the AJ concluded that with respect to complainant's claim of
reprisal discrimination, she was unable to establish that the alleged
retaliating official had knowledge of complainant's protected activity.
The AJ concluded also that there was no causal connection between the
alleged adverse employment action and complainant's protected activity.
The record also reflects that several of complainant's claims (claims (2),
(7), and (8)) address the denial of official time. The AJ determined
that the agency did not act in a discriminatory manner in regard to
these claims.
Harassment
Complainant alleges also that she is a victim of harassment by the agency
and that the actions described in her complaint have created a hostile
work environment. Regarding complainant's claim that she was subjected
to a hostile work environment, we note that harassment of an employee
that would not occur but for the employee's race, color, sex, national
origin, age, disability, religion or prior EEO activity is unlawful, if
it is sufficiently patterned or pervasive.<1> Wibstad v. United States
Postal Service, EEOC No. 01972699 (August 14, 1998)(citing McKinney
v. Dole 765 F. 2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3, 9 (March 8, 1994).
In determining that a working environment is hostile, factors to
consider 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. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance
at 6. The Supreme Court has stated that: �Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview.� Harris, 510 U.S. at 22 (1993).
Here, we find that complainant failed to establish that she was subjected
to a hostile work environment. Complainant alleges that she was subjected
to �harassment and deliberate creation of a hostile, intimidating or
abusive environment. . . .� In addition, complainant alleges that
agency officials allowed ongoing harassment and intimidation to injure
her and deny her benefits. Taken as a whole, we find that complainant
has not shown that the actions alleged were sufficiently severe or
pervasive as to constitute hostile work environment harassment under
Commission regulations. After careful review of the record, including
complainant's contentions on appeal, we find that complainant failed to
demonstrate that the agency discriminated against her as alleged.
Disparate Treatment
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 complainant to prevail, she 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. See 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. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears 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. See 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. See U.S. Postal
Service Board 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 Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission agrees with the AJ that complainant did not present
evidence indicating that, under a disparate treatment analysis, the
agency's actions were motivated by complainant's race, sex, disability,
or in reprisal for prior protected activity. We further determine that
the agency articulated legitimate, non-discriminatory reasons for its
actions, and that complainant did not show that the agency's articulated
reasons were a pretext for discrimination.
Official Time
Complainant alleges in claims (2), (7), and (8), that the agency denied
her official time to pursue her discrimination claim. The AJ found that
complainant initially requested ten hours to meet with her representative
and the agency denied this request as excessive. The AJ noted that
complainant was informed by her supervisor that four hours would be a
reasonable amount of time to meet with her representative to discuss a
pending claim.
The AJ then noted that complainant also requested time off that was
not within her official tour of duty; and that finally, complainant
again requested off a ten-hour shift to meet with her representative,
which was denied as excessive.
While AJ determined that the agency did not act in a discriminatory manner
on the issue of official time, the Commission has consistently held that
a claim dealing with the denial of official time is a claim regarding
a violation of EEOC regulations, and not a claim of discrimination.
See Edwards v. USPS, EEOC Request No. 05950708 (October 31, 1996).
Thus, the focus in evaluating such a claim should be on whether or not a
complainant was denied official time, and not on the agency's motivation.
See O'Donnell v. USPS, EEOC Appeal No. 01A02094 (May 31, 2000).
Applying the holding in the aforementioned cases to the facts in these
claims, the Commission finds that there is evidence supporting the
AJ's finding that the agency did not improperly deny official time to
complainant to meet with her EEO representative or to prepare for her
EEO related matters.
After a careful review of the record, the Commission finds that grant
of summary judgment 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. We agree with the AJ's finding that complainant failed to
establish a prima facie case of discrimination on any alleged basis.
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.
Accordingly, based on a careful review of the record, including arguments
and evidence not specifically addressed in this decision, the agency's
final order is hereby AFFIRMED for the reasons set forth herein.
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 20, 2004
__________________
Date
1The Commission will presume, for purposes of analysis only and without
so finding, that complainant is an individual with a disability.