01A01310
03-20-2003
Patricia Williams, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Patricia Williams v. Department of the Air Force
01A01310
03-20-03
.
Patricia Williams,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A01310
Agency Nos. HH2W96014, HH2W97005
Hearing Nos. 100-97-7409X, 100-97-7427X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
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
REVERSES and REMANDS the agency's final decision.
ISSUES PRESENTED
The issues presented herein are:
Whether, based upon the investigative record, complainant's complaints,
and the parties' briefs, the issues were properly defined;<1> and
Whether a genuine issue of material fact exists with respect to
complainant's claim that she was discriminated against on the bases
of race (African-American), sex (female), and reprisal<2> for prior
EEO activity, and was subjected to sexual harassment (hostile work
environment).
BACKGROUND
During the relevant time, complainant was employed as an Employee
Relations Specialist, GM-230-13, in the Labor and Employee Services
Division, Human Resources Directorate, National Guard Bureau at the
agency's Alexandria, Virginia facility. The record reflects that the
position of Division Chief was filled by temporary promotions to GS-14 and
details.<3> Four individuals received the temporary promotions, including
the Employee Services Team Leader (Team Leader) (African-American,
male); the Labor Team Leader (white, male); Labor Relations Specialist
(white, female) (comparator-1); and complainant. Complainant received
her temporary promotion after she filed an EEO complaint. The record
reveals that complainant held the Division Chief position for 115 days,
and the Team Leader held it for 90 days. In contrast, complainant
contended that the Labor Relations Specialist and comparator-1 received
details to the position in addition to their 120-day temporary promotions.
During the Team Leader's temporary promotion to the Division Chief
position, complainant temporarily held the Employee Services Team
Leader position. The Team Leader retired in January 1996, and the agency
chose not to permanently select anyone for his position, citing concerns
related to downsizing and the number of employees in the team.
From 1994 through 1996, several employees in complainant's directorate
received Quality Step Increases (QSIs), including comparator-1.
The record reflects that both complainant and comparator-1 exceeded
their performance standards and received the highest ratings possible on
their appraisals. In addition, another coworker, GS-11, (white, male)
(comparator-2) received an $8,000 Special Act Award for suggestions that,
according to complainant, never resulted in a cash savings to the agency.
Complainant's 1995 Performance Appraisal credited her �with a cost savings
for 1995 of over $1,200,000.� The record reveals that, after complainant
filed an EEO complaint, she received an $1,800 Special Act Award.
In February 1996, a Selection Board (Board) evaluated complainant and
comparator-1 to determine which one would attend the Office of Personnel
Management (OPM) Management Development Seminar (Seminar). The Board
rated comparator-1 higher than complainant based on a supplemental
questionnaire and selected comparator-1. Complainant contended that,
after the February 1996 Seminar, the responsible management official
(RMO-1) (white, male) intentionally sought to send complainant to
the Seminar when he knew she could not attend for personal reasons.
The record reflects that thereafter RMO-1 immediately arranged for
complainant to attend the Seminar in August 1996.
After complainant completed her temporary promotion to Division Chief
in 1996, RMO-1 directed complainant to perform duties in the area of
Performance Management. Complainant maintained that RMO-1 further
instructed her not to perform her regularly assigned duties of Office
of Workers' Compensation Programs (OWCP) Program Manager. Instead, the
record reveals that RMO-1 asked complainant's temporary replacement
(white, male) to �carry on with [complainant's] responsibilities
. . . .� RMO-1 testified that complainant had agreed to be reassigned
to the Performance Management review, but complainant maintained that
she made it very clear to RMO-1 that she did not want to be reassigned.
Complainant averred that she was ordered not to speak to anyone in OWCP
and was relieved of all of her responsibilities except review of the
Performance Management Plan.
Complainant requested advanced sick leave on September 6, 1996, but
she received no response from RMO-1 until October 9, 1996, when he
requested a specific date for her return to work. By letter dated
October 29, 1996, RMO-1 approved the advanced sick leave for the period
from September 16, 1996 to October 11, 1996, noting that complainant
had failed to submit a statement indicating the date she expected to
return to normal duties.<4> The letter further stated that complainant
declined a reassignment to another position. Complainant contended that
she did not request reassignment, and that management made no offer to
her of a reassignment. Complainant believed that RMO-1 claimed to have
made the alleged reassignment offer in an attempt to dislodge her from
the National Guard Bureau.
On September 24, 1996, complainant submitted a request to management
for workers' compensation. The record reflects that the workers'
compensation documentation did not reach the Department of Labor until
November 16, 1996, well beyond the 10-day requirement for the submission
of such claims. Complainant asserted that RMO-1 sabotaged her workers'
compensation claim in retaliation, by misrepresenting that complainant
�was absent from her office a considerable amount of time leading up to
an extended continued absence from [July 31 to September 3, 1996].�
On December 16, 1996, complainant returned to work and, as directed by
a prior letter from agency counsel, reported to a room at the Pentagon.
She discovered that she did not have an office, and was placed �in an
aisle next to a computer printer.�<5> Later that day, agency management
informed complainant that RMO-3 (white, male) had stated that complainant
would not be returning to agency employment. Complainant was directed
to return home. The following day complainant returned to the Pentagon,
however, agency management told her that she was not authorized to return
to work and directed her to go home and not return.<6>
Complainant also maintained that management exhibited sexist attitudes
and that a hostile work environment and a sexual quid pro quo for career
advancement was present in the facility.<7> Complainant asserted that as
far back as 1992 a manager informed her that �if you want to go to the
[] EEO Manager's Course, you're going to have to play ball with me.�
Complainant also presented testimony from several coworkers that, among
other things, RMO-2 (white, male) kissed the EEO Director's wife on the
back of the neck at a national conference; put his arm around his female
secretary and commented on her good looks; grabbed women by the waist,
pulled them too close to him such that they felt uncomfortable; caused
women to back out of the coffee room when he would �stare down in their
bosom[s];� and, in February 1996, �fondl[ed] or lift[ed]� the �dress
jacket� of a coworker (black, female) from another division and made
sexual comments about how good the coworker looked. Complainant further
asserted that another female employee (comparator-3) received preferential
treatment from RMO-1 and RMO-2 due to a sexual relationship.<8> In this
regard, complainant's coworker testified that comparator-3 received
�preferential treatment� and that �[RMO-1] went the extra mile for
[comparator-3] . . . , because of their personal relationship, to
obtain the [GS-15].� Another of complainant's coworkers testified
that recognition in the office was based upon personal relationships
with management and that these relationships �caused a sexually hostile
working environment.�
Complainant sought EEO counseling and subsequently filed formal
complaints. At the conclusion of the investigation, complainant was
provided a copy of the investigative file and requested a hearing
before an AJ. The AJ issued a decision without a hearing finding no
discrimination.
The AJ concluded that complainant failed to show that she was subjected
to sexual harassment or unlawful sexual favoritism. She further found
that, with respect to her other claims, complainant failed to state a
claim, to establish a prima facie case, or to proffer evidence from which
pretext could be determined. The agency's final action implemented the
AJ's decision.
On appeal, complainant contends, among other things, that: (1) the
AJ adopted the statement of the issues propounded by the agency over
complainant's objection; (2) summary judgment was entered without
identification of the portions of the record that demonstrate the
absence of a genuine issue of material fact; and (3) the agency's
investigator found that the agency failed to articulate a legitimate
nondiscriminatory reason for complainant not receiving a similar award
for her work achievements as comparator-1. Complainant also identified
numerous material facts which she believed to be in dispute.
The agency stands on the record and requests that we affirm its final
action implementing the AJ's decision. The agency notes that the
investigative file, which included three days of verbatim transcripts
of all witness testimony from a fact finding conference, provided a
complete record for the AJ's adjudication of complainant's complaint.
In addition, the agency argues that it is inappropriate for complainant
to continue to attack the AJ's issue definition at the appellate stage.
ANALYSIS AND FINDINGS
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, 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 improperly defined the issues.
After a careful review of the record, we find that, based on the
investigative record, complainant's complaints, and the parties' briefs,
the issues were improperly defined. By separately listing each incident
alleged in complainant's separate complaints, the identified issues
represent an erroneous piecemeal method for addressing the underlying
claim of a pattern of ongoing discrimination. See Reid v. Department of
Commerce, EEOC Request No. 05970705 (April 22, 1999). Complainant claims
that the responsible management officials treated her differently on
the bases of race, sex, and reprisal, and that she was subjected to
sexual harassment (hostile work environment) and denied opportunities
due to sexual favoritism at the facility. Rather than identifying
each separate incident as an issue, the incidents should be considered
evidence supporting complainant's overall claim that management was
treating her differently and harassing her. Accordingly, the Commission
identifies the issues as whether complainant was discriminated against
on the alleged bases when: (1) the agency failed to temporarily and/or
permanently promote complainant to either the position of Chief of the
Labor and Employee Services Division, GS-14/15 or the Employee Services
Team Leader position, GS-13/14; (2) the agency first failed to select
complainant for the OPM Management Development Seminar in Lancaster,
Pennsylvania in February 1996, and then approved her attendance at the
Seminar when she would be unable to attend; (3) the agency failed to
select complainant for a Quality Step Increase or Special Act Award for
the 1994-1995 performance rating period; (4) the responsible management
officials subjected complainant to sexual harassment/sexual favoritism,<9>
creating a hostile work environment; and (5) the responsible management
officials subjected complainant to ongoing retaliation<10> when they
(a) relieved her of her duties as Workers' Compensation Program Manager
on November 4, 1996, (b) assigned her the duties of the Performance
Management Program Manager, (c) failed to promptly approve her September
6, 1996 request for advanced sick leave, (d) failed to timely forward
her workers' compensation claim to DOL, and (e) made false statements
about her declining a job offer, ultimately resulting in her being told
to leave the Pentagon and not return.
The AJ erred when she concluded that there are no genuine issues of
material fact in this case with respect to issues 1, 3, 4, and 5.
The Commission finds that the AJ erred when she concluded that there are
no genuine issues of material fact in this case. Since 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,
issues 1, 3, 4, and 5 are remanded for the reasons stated below.
1. Issue 1: Promotion Claim
Complainant contended that the agency failed to temporarily and/or
permanently promote her to either the position of Chief of the Labor and
Employee Services Division, GS-14/15 or the Employee Services Team Leader
position, GS-13/14. On appeal, complainant asserts that, although she
and Team Leader (black, male) were temporarily promoted to the Division
Chief position,<11> their time in the position was strictly limited to 120
days or less. In contrast, the two white employees who were temporarily
promoted to the position were liberally granted longer periods in the
position.<12> This aspect of complainant's claim was not considered,
however, because management asserted that complainant did in fact receive
a temporary promotion to the Division Chief position. We find that the
reason complainant's temporary promotion was not extended beyond the
120-day promotion needs to be further explored before a decision can
be rendered.
2. Issue 3: Quality Step Increase or Special Act Award Claim
Complainant asserted that the agency failed to set forth with sufficient
clarity reasons for not selecting her for a QSI or Special Act Award
for the 1994-1995 performance rating period. We note that, during the
fact finding conference, RMO-1 stated, �[comparator-1 and complainant]
were indeed on different positions, had different requirements,
different expectations of what their work would be. . . I guess it's
very judgmental, but I didn't think [that complainant's standards] were
exceeded by as much a degree as [comparator-1's].� Transcript of Fact
Finding Conference in the Discrimination Complaints of [complainant] at
p. 172, lines 3-13. The record reflects however, that both complainant
and comparator-1 exceeded their performance standards and received the
highest ratings possible on their appraisals. Furthermore, comparator-2
received an $8,000 Special Act Award for suggestions that, according
to complainant, never resulted in an actual cash savings to the agency.
In contrast to both comparators, complainant's 1995 Performance Appraisal
credited her �with a cost savings for 1995 of over $1,200,000.� The
agency makes much of the fact that RMO-1 eventually approved a $1,800
Special Act Award for complainant in his efforts to resolve the issue.<13>
We note, however, that complainant has not yet received the equivalent
of a QSI or $8,000 Special Act Award. While complainant's duties were
not identical to those of comparator-1 and comparator-2, complainant
has presented evidence that she exceeded her performance standards at
least to the same degree as the comparators and was responsible for a
cost savings of over $1,200,000. Therefore, a genuine issue of material
fact exists with respect to issue 3.
3. Issue 4: Sexual Harassment/Sexual Favoritism Claim
Complainant claimed that the responsible management officials subjected
her to sexual harassment/sexual favoritism, creating a hostile work
environment. On appeal, complainant contends that the AJ ignored the
sexually charged atmosphere that existed in the facility. The record
reflects that complainant provided extensive testimony from several
coworkers regarding conduct of a sexual nature and sexual favoritism in
the office. Management merely denies that such an atmosphere existed.
We note that complainant reported conduct to management that she believed
constituted sexual harassment, but the record reveals that the conduct
continued. Although the agency has submitted testimony from management
specifically denying complainant's allegation of sexual harassment/sexual
favoritism, creating a hostile work environment, a genuine issue
exists as to whether the sexual favoritism was widespread, or whether
a manager gave preferential treatment to his consensual sexual partner
and to those employees who reacted favorably to the sexual advances and
other conduct of a sexual nature, and disadvantaged those employees who
reacted unfavorably to his conduct. See Policy Guidance on Employer
Liability under Title VII for Sexual Favoritism, Order No. 915.048
(January 12, 1990).
4. Issue 5: Ongoing Retaliation Claim
Complainant claimed that the responsible management officials subjected
complainant to ongoing retaliation<14> when they (a) relieved her of her
duties as Workers' Compensation Program Manager on November 4, 1996, (b)
assigned her the duties of the Performance Management Program Manager,
(c) failed to promptly approve her September 6, 1996 request for advanced
sick leave, (d) failed to timely forward her workers' compensation claim
to DOL, and (e) made false statements about her declining a job offer,
ultimately resulting in her being told to leave the Pentagon and not
return. On appeal, complainant asserts that she informed management
that she was not interested in the area of Performance Management and
wished to continue in her OWCP Program Manager position. However,
RMO-1 averred that complainant agreed to the change in her duties.
Similarly, management represented, in both a fact finding conference and
in an October 29, 1996 letter, that complainant declined a reassignment
to another position. Complainant, however, asserts that management
never offered her a reassignment. We note that complainant's failure
to accept the reassignment resulted in the agency sending complainant
home from the Pentagon and telling her not to return. If the alleged
incidents of ongoing retaliation occurred as complainant described them,
the agency could be found to have retaliated against complainant for
engaging in protected activity through harassment in the workplace, as
its action may have been reasonably likely to deter protected activity
by complainant or other employees.
While we make no judgment about the veracity of the statements made by
the witnesses to this matter, this is precisely the type of evidence
that is appropriate for cross-examination, elaboration and credibility
determinations. Since complainant's evidence must be believed at the
summary judgment stage and all justifiable inferences must be drawn in
her favor, we find that genuine issues of material fact exist.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 7, page 7-1; see also
29 C.F.R. � 1614.109(e). �Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives complainant of a full and fair
investigation of her claims.� Mi S. Bang v. United States Postal Service,
EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). We further note that a fact finding conference is not
a substitute for a hearing before an EEOC AJ. The Commission finds that
the issues were incorrectly identified, and there are simply too many
unresolved issues which require an assessment as to the credibility of the
various management officials, co-workers, and complainant. Therefore,
judgment as a matter of law for the agency should not have been granted
with respect to issues 1,<15> 3, 4, and 5.
C. There are no genuine issues of material fact in dispute with respect
to issue 2.
The Commission finds that there are no genuine issues of material fact
in dispute with respect to issue 2, and therefore, it is ripe for summary
judgment. Issue 2 is whether the agency discriminated against complainant
on the bases of race and sex when the agency first failed to select
complainant for the OPM Management Development Seminar in Lancaster,
Pennsylvania in February 1996, and then approved her attendance at the
Seminar when she would be unable to attend.
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); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). 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, that is, 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 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. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
In order to establish a prima facie case of discrimination based
on race and sex, complainant may show that: (1) she is a member of a
protected group; (2) she was subjected to an adverse employment action;
and (3) she was treated less favorably than other similarly situated
employees outside of her protected groups. We note that it is not
necessary for complainant to rely strictly on comparative evidence in
order to establish an inference of discriminatory motivation necessary
to support a prima facie case. O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n. 4
(September 18, 1996). We find that complainant has proven a prima facie
case of race discrimination. The record indicates that complainant
is a member of a protected group, she was initially denied training,
and she was treated less favorably than a similarly situated white
employee, i.e., comparator-1. Complainant has failed to prove a prima
facie case of sex discrimination, however, because comparator-1 is also
a female and complainant failed to adduce evidence raising an inference
of discrimination.
Since complainant has established a prima facie case of race
discrimination with respect to issue 2, the burden now shifts to the
agency to articulate legitimate, nondiscriminatory reasons for its
action. The record reflects that the Board evaluated complainant and
comparator-1 to determine which one would attend the Seminar. The Board
rated comparator-1 higher than complainant based on a supplemental
questionnaire and selected comparator-1. Furthermore, RMO-1 asserted
that he immediately arranged for complainant to attend the Seminar in
August 1996.
Since the agency articulated a legitimate, nondiscriminatory reason for
its actions, the burden returns to the complainant to demonstrate that the
agency's articulated reason was pretext for discrimination. Complainant
can do this either by showing that a discriminatory reason more likely
motivated the agency, or that the agency's proffered explanation
is unworthy of credence. Burdine at 253. During the investigation,
complainant asserted that management gave her an arbitrary, three day
deadline to respond to a supplemental questionnaire for the Board's
review, while comparator- 1 was permitted to submit her supplemental
questionnaire at the last moment. Complainant fails to show pretext,
however, because the record reflects that the Board evaluated the
supplemental questionnaire for content and rated comparator-1 higher
than complainant. In addition, complainant contended that RMO-1
intentionally sought to send her to the Seminar when he knew she could
not attend for personal reasons. We find, however, that complainant's
assertion alone that RMO-1 acted out of discriminatory animus is not
enough for her to prevail absent evidence that an illegal motive existed.
For these reasons, we find that complainant failed to present sufficient
evidence to show that the agency discriminated against her on the bases
of race and sex when it first failed to select complainant for the OPM
Management Development Seminar in Lancaster, Pennsylvania in February
1996, and then approved her attendance at the Seminar when she would
be unable to attend. Accordingly, partial summary judgment is granted
for the agency as to issue 2.
CONCLUSION
After a careful review of the record, including complainant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission REVERSES the agency's final
action and REMANDS the matter to the agency in accordance with this
decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
____03-20-03______________
Date
1 On January 27, 1998, the AJ issued an order defining the issues as
whether complainant was discriminated against on the alleged bases
when: (1) she was not selected for temporary noncompetitive promotion
to the position of Chief of the Labor and Employee Services Division
(Division Chief), GS-14; (2) she was not selected for noncompetitive
permanent promotion for the Division Chief position at the GS-15 level;
(3) she was not selected for noncompetitive promotion to Employee Services
Team Leader, GS-14; (4) she was not selected for the Office of Personnel
Management (OPM) Management Development Seminar (Seminar) in Lancaster,
Pennsylvania in February 1996; (5) she was not selected for a Quality Step
Increase (QSI) or Special Act Award for the 1994-1995 performance rating
period; (6) she was subjected to sexual harassment, creating a hostile
work environment by two responsible management officials (RMO-1 and
RMO-2); (7) she was temporarily promoted to Division Chief at the GS-14,
rather than GS-15 level; (8) she was awarded a $1,800 performance award
instead of a Special Act Award and QSI for the 1994-1995 performance
rating period; (9) she was approved for attendance at the Seminar on
May 27-June 7, 1996, when she would be unable to attend for personal
reasons; (10) she was relieved of her duties as Workers' Compensation
Program Manager on November 4, 1996; (11) she was assigned the duties of
a coworker, the Performance Management Program Manager; (12) her request
of September 6, 1996 for advanced sick leave was not promptly approved;
(13) her request for workers' compensation was not timely forwarded
to the Department of Labor (DOL); and (14) RMO-1 and RMO-3 made false
statements about her declining a job offer.
2 Complainant alleged reprisal with respect to claims (7), (11), (12),
(13), and (14).
3 Management requested that the Air Force personnel office upgrade the
NGB-GS-14 positions they serviced, including the Division Chief position,
and provide an eventual upgrade of subordinate GS-13 positions, including
complainant's position. The agency delayed action and management
requested that the Department of Defense, Field Advisory Services clarify
the differences in the position classifications. The advisory opinion
found that the Division Chief position was classifiable at the GS-15
level, however, permanent promotions to the position were not made during
the relevant time period.
4 The agency's delay in processing complainant's request for advanced sick
leave resulted in complainant not receiving her salary until December 13,
1996, three days before she returned to work.
5 The agency noted that another employee, GS-13, used the workspace �in
[the] aisle next to a computer printer� prior to complainant.
6 The record remains unclear as to when or if complainant returned to
the agency after the December 17, 1996 incident.
7 In its July 3, 1996 Notice of Acceptance/Dismissal Of Discrimination
Complaints, the agency dismissed complainant's claims of a hostile work
environment that occurred from 1991 to April 1994, finding the claims
untimely pursuant to 29 C.F.R. � 1614.107(a)(2). Complainant appealed
the dismissal of her claims to the Commission, however, she withdrew
her appeal prior to a decision being rendered.
8 Complainant contends that RMO-1 and the female employee eventually
married.
9 While sexual favoritism based on a consensual relationship has not
been found to create a hostile environment for others in the workplace,
See Miller v. Aluminum Co. of America, 679 F. Supp. 495 (W.D. Pa. 1988),
if the sexual favoritism is widespread, the fact that it is exclusively
voluntary and consensual will not defeat a claim that it created a hostile
work environment for other people in the workplace. Policy Guidance
on Employer Liability under Title VII for Sexual Favoritism, Order
No. 915.048 (January 12, 1990), at n.13. In addition, if a manager
gave preferential treatment to his consensual sexual partner and to
those employees who reacted favorably to the sexual advances and other
conduct of a sexual nature, and disadvantaged those employees who reacted
unfavorably to his conduct, a violation of Title VII may be found. Id.,
at n. 12; see Priest v. Rotary, 634 F. Supp. 571 (N.D. Cal. 1986).
10 The actions that can be challenged as retaliatory are not restricted
to actions that affect the terms and conditions of employment. Thus,
a violation will be found if an employer retaliates against a worker
for engaging in protected activity through threats, harassment in or
out of the workplace, or any other adverse treatment that is reasonably
likely to deter protected activity by that individual or other employees.
EEOC Compliance Manual (Section 8: Retaliation), Order No. 915.03 (May
20, 1998).
11 We note that complainant was temporarily promoted to the Division
Chief position after she filed an EEO complaint.
12 The record reflects that management requested that comparator-1
receive an additional 120-day detail to the Division Chief position.
However, the request was not approved by the agency's personnel office.
The reason management requested an additional detail for comparator-1,
even though she did not actually receive the detail, should be developed
during the hearing.
13 We note that the evidence of record does not reflect that issue 3
was resolved through a settlement agreement.
14 The actions that can be challenged as retaliatory are not restricted
to actions that affect the terms and conditions of employment. Thus,
a violation will be found if an employer retaliates against a worker
for engaging in protected activity through threats, harassment in or
out of the workplace, or any other adverse treatment that is reasonably
likely to deter protected activity by that individual or other employees.
EEOC Compliance Manual (Section 8: Retaliation), Order No. 915.03 (May
20, 1998).
15 To the extent that the Department of Defense, Field Advisory Services'
opinion found that the Division Chief and the Employee Services Team
Leader positions were classifiable at the GS-15 and GS-14 levels
respectively and the agency posted the Vacancy Announcements for
those positions as such, the issue shall be whether the agency failed
to temporarily and/or permanently promote complainant to either the
position of Chief of the Labor and Employee Services Division, GS-15,
or the Employee Services Team Leader position, GS-14. If, however,
the Vacancy Announcements for these positions reflect the lower grade
level, the Division Chief position shall be classified as a GS-14 and
the Employee Services Team Leader position shall be classified as a
GS-13 for the purposes of this complaint.