01A01133
04-11-2002
Phyllis A. Daws, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Phyllis A. Daws v. Department of the Navy
01A01133
April 11, 2002
.
Phyllis A. Daws,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A01133
Agency Nos. 95-68890-001 and 95-68890-004
Hearing Nos. 130-98-8373-X and 130-99-8078-X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
(FAD), dated October 29, 1999, concerning her two equal employment
opportunity (EEO) 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged in Agency No. 95-68890-001, that she was discriminated
against on the bases of sex (female) and age (DOB: February 18, 1938),
when she was subjected to disparate treatment and harassment resulting
in a hostile work environment, based on the following:
Complainant's shift supervisor (S1) (male, DOB November 21, 1941)
was verbally abusive to her, screamed at her, would not respond to
her questions, and ignored her, during the period from September 8,
1992 through April 12, 1993.
Between April 1993 and July 1993, complainant was required by a shift
supervisor (S2) (male, over 40) to �radio in� whenever she went to
the restroom, and she was criticized and demeaned on a daily basis and
required to take the shooting qualification test at the firing range
after she had worked twelve consecutive midnight shifts.
In January 1994, a shift supervisor (S3) (male, age 38, DOB November 5,
1956) ignored her request to learn to drive a jeep, and from January
1994 to May 17, 1994, S3 verbally abused her, said to other personnel
that she was a �bitch,� that she was stupid, and spoke to her in a
degrading manner, stating that she was forgetful and asked why she did
not consider retirement.
On May 12, 1995, the Chief of Police (COP) (male, over 40), directed
by S3, ordered complainant to retake a thirteen-week field training
course, which she had recently passed. The complainant acknowledged,
however, that the requirement was rescinded after S3 was advised that
complainant had already successfully completed the course.
S3 denied complainant's request to have a work week tour of duty with
Fridays and Saturdays as her days off. And, in May 1994, S3 denied her
requests for annual leave so she could move from another city and to
meet her son at the airport. Also that S3 would not allow her to use
the dispatch telephone for personal calls, disapproved complainant's
request to take sick leave, and was insensitive to her anemic condition.
Management failed to control smoking in patrol cars and in the gate
house which adversely affected her work performance and her ability to
concentrate due to her allergic reactions and medications. Further,
S3 would not allow her to drive the truck to patrol the Base, and in
June 1994, S3 did not honor her request for a shift change. Also that
S3 documented and/or accused her of minor errors, such as using a blue
pen instead of a black pen when writing traffic tickets.
In May 1994 through July 1994, complainant was subjected to close
scrutiny when a detective (male, DOB August 20, 1949) and an officer
were sent by COP to patrol past her home while she was on sick leave,
and after they reported that she was not at home, S3 issued her a
letter of counseling. Also, that she was singled out and wrote up for
a uniform infraction, missing a hat, while on gate duty.
Complainant was required to undergo a fitness for duty exam on May 17,
1994, which she passed, and was questioned by COP and S3 needlessly
when she once spoke to a fellow officer during her lunch break.
Also, complainant was screamed at by the Security Officer (SO), a
Navy lieutenant (female, DOB December 31, 1955), when complainant was
assisting fire department personnel during an exercise.<1>
Complainant alleged in Agency No. 95-68890-004, that she was discriminated
against on the bases of sex (female), age, and reprisal (prior EEO
activity, Agency No. 95-68890-001) when she was subjected to harassment
and disparate treatment, based on the following incidents:
On or about January 16, 1995, the Weapons Officer (WO) made jokes about
complainant in a training class.<2>
On March 23, 1995, complainant was issued a Notice of Proposed Removal
from federal service by the SO.
On two occasions, complainant was assigned galley work, while pregnant
females were not.
The Medical Officer (MO) determined that complainant's medical
documentation was insufficient to return her to the position of police
officer; and
On January 24, 1995, the WO, who was the range safety officer, criticized
complainant's attire during weapons qualifications at the firing range.
Complainant did not file a complaint on the basis of disability.
The Report of Investigation states that the EEO investigator expanded
the bases of discrimination to include disability (physical and mental)
because of the close association of the actions at issue and complainant's
medical condition.
ISSUES PRESENTED
Whether complainant was the victim of unlawful discrimination, on the
bases of sex (female) and age, when she was subjected to disparate
treatment and harassment resulting in a hostile work environment, based
on the incidents, nos. 1 through 8; and whether complainant was the
victim of unlawful discrimination, on the bases of sex (female), age,
disability, and reprisal, based on the incidents, nos. 9 through 13.
BACKGROUND
The record reveals that, at the relevant times, complainant was a Police
Officer, GS-0083-05, Security Department, at the U.S. Naval Station,
Pascagoula, MS, facility. At the time of her hire on September 8, 1992,
she was one of four female police officers and the only female police
officer over forty years of age. She was hired into her position by
the SO. At that time, the Base police force consisted mostly of male
employees over forty years of age.
Agency No. 95-68890-001
In Agency No. 95-68890-001 complainant alleged that she had been
discriminated against on the bases of age (56) and sex (female).
Complainant alleged that she had been subject to a continuing campaign
of harassment and disparate treatment by her supervisors, S1, S2, S3,
COP, and SO, since September of 1992.<3> Complainant filed a formal
complaint on October 3, 1994, based on the allegations set forth above.
On December 30, 1994, the agency dismissed part of the complaint.
In its partial dismissal, the agency stated that, because her supervisor
from September 1992 until January 11, 1994 had resigned his position,
complainant's harassment allegations regarding him were moot. The agency
accepted complainant's harassment allegations regarding her then current
supervisors for investigation.
Complainant appealed the partial dismissal and argued that the allegations
against her former supervisor were not moot because her then current
supervisor knew how she was treated and continued the harassment.
Complainant also argued that the agency failed to address all of the
allegations in her complaint, because an additional superior officer
who harassed her was omitted from the agency's decision. In Daws
v. Department of the Navy, EEOC Appeal No. 01952033 (April 11, 1996)
the Commission decided that the agency did not address the continuing
violation theory, and therefore, allegations regarding her former
supervisor were improperly vacated, and the matter was remanded to
the agency for further processing.<4> Following additional informal
counseling, a second amended Notice of Acceptance was issued on September
19, 1996, wherein the complaint No. 95-68890-001 was accepted in its
entirety and an investigation was undertaken as to S1, S2, S3, COP,
and SO.
Agency No. 95-68890-004
In Agency No. 95-68890-004, complainant alleged that she had been
discriminated against on the bases of age (57), sex (female), and
reprisal, by WO, SO, and MO. As noted previously, the investigator
expanded the bases to include disability. Complainant filed a formal
complaint on July 26, 1995. The second complaint identifies complainant
as a Recreation Aid, GS-0189-03, in the Morale, Welfare, and Recreation
Department at the facility. However, it appears that the incidents
complained of involve complainant's employment as a Police Officer.
The cases were processed separately and at the conclusion of the
investigations, complainant received copies of the investigative reports
and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ heard the cases at a hearing on July 7 and 8, 1999. Thereafter,
the AJ issued a decision finding no discrimination in both cases.
The FAD adopted the analysis and conclusions of the AJ. For the following
reasons, the Commission affirms the agency's final decision.
CONTENTIONS ON APPEAL
Complainant contends that the AJ considered the complaints only
in their most literal and separate sense and refused to look at the
overall environment created by the acts despite the ongoing nature of
the conduct and the nature of a hostile environment case. Complainant
contends that the AJ erred in finding that on each issue there has been
no disparity shown by the complainant in her treatment when compared
with other employees.
The agency contends that complainant failed to show that she was
subjected, on a protected basis, to harassment that created a hostile
work environment. Further the agency contends that the burden rests
with complainant to prove discrimination and in the absence of direct
proof, complainant bears the initial burden of proving a prima facie
case of discrimination. The agency contends that complainant failed
in her burden to prove a prima facie case. Also, the agency contends
that the AJ, having listened to all the testimony, had the opportunity
to judge the credibility of the witnesses, and that the judge's factual
findings were based on substantial evidence.
ANALYSIS AND FINDINGS
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). The Commission also notes that the credibility
determinations of the AJ are entitled to deference due to the AJ's
first-hand knowledge, through personal observations, of the demeanor
and conduct of the witnesses at the hearing. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
The record reflects that with respect to Agency No. 95-68890-001
complainant testified that from September 8, 1992 through July 12, 1994,
she was subjected to continuous abusive actions by her agency's security
management staff, particularly by S1, S2, and S3, and that SO and COP
were aware of the harassment but failed to take any action.
Concerning S1, complainant testified that she had laminated her weapon
card and S1 screamed at her when he saw the laminated card. Also,
complainant testified that S1 continually belittled her and embarrassed
her. Further, complainant testified that S1 sometimes would not answer
her questions and was always ignoring her. Complainant testified that
S1 had a filthy mouth, told filthy jokes, and did embarrassing bodily
functions in the presence of others.
Concerning S2, complainant testified that he required her to radio in
when she went to the restroom and required her to shovel dead rabbits
off the road. Complainant testified that S2 criticized her and demeaned
her character. Complainant testified that S3 called her a �bitch,�
and �stupid� to others. Also, complainant testified that S3 refused to
teach her how to drive a jeep and made remarks to her about her retiring.
Complainant testified that she was talked about by S3 when she did not
raise the flag properly one time.
The complainant testified that she reported a smoking problem in police
cars and at the guard station which management, presumably COP, had failed
to control. Complainant testified that she was initially ordered by
COP to take a second Field Training Course, but the order was rescinded.
Complainant testified that she had requested from her supervisors but was
denied shift changes, annual leave, and sick leave. Complainant testified
that COP, when she took sick leave, had a detective and another office
drive by her home to see if she was at home. Complainant also testified
that she was�written up� for not wearing her hat. Complainant testified
as to personal phone call usage, and her request to drive the jeep.
Complainant also testified as to a fitness for duty examination, and that
she was questioned by COP and S3 concerning speaking to other officers
during her lunch break. Complainant also testified concerning using the
wrong color ink on traffic tickets. Complainant further testified that
SO screamed at her.
The record reflects with respect to Agency No. 95-68890-004 concerning
incident 9, complainant testified that the WO made inappropriate
remarks and jokes about her. WO advised COP that complainant did not
wear her uniform hat on another occasion and criticized her for being
out of uniform at the firing range. Concerning incidents 10 and 11,
complainant testified that SO issued her a Notice of Proposed Removal,
and detailed her to the galley when she had sprained her hand. At other
times, complainant asserted that she was not able to pass the firing test
because she did not have the hand strength to pull the gun slide back.
As a police officer, complainant was required to carry a weapon and
pass the firing test. Complainant also testified that MO issued her a
medical determination that she was not physically or mentally fit for
duty, and was recommended for further evaluation.
The AJ found that the complainant did not initially complain about S1's
conduct and that there was insufficient evidence that higher level
management officials were aware of S1's conduct during the relevant
time period.<5> The AJ found that it was undisputed that S1 treated all
employees, including males, females, and those over and under forty years
in a rude, inconsistent, and abusive manner. The AJ found that as to
many of the incidents related by the complainant, there was conflicting
testimony, and that complainant did not present any probative evidence
other than her statements. The record reflects that agency witnesses
rebutted many of the complainant's allegations.
The AJ found that the complainant failed to present any evidence
that similarly situated males, and/or younger employees were treated
differently than the complainant. Further, the AJ found that the
complainant failed to provide sufficient evidence that age or sex
motivated any of the conduct that she complained about. The AJ generally
found that the incidents, such as the failure to radio in while using
a restroom, learning to drive a jeep, leave denials, failure to wear
her hat, using the telephone, and fitness for duty examinations, were
situations where agency practices and policies were being complied with
by the agency. The AJ also found that there were no similarly situated
police officers who were treated differently, under the same or similar
circumstances, and that there was no disparity in treatment.
Concerning alleged remarks made by others, the AJ found that complainant
did not prove by sufficient evidence that the remarks were sufficiently
severe and/or pervasive. Also, the remarks, if made, were made to third
parties, not in complainant's presence, and thereafter communicated to
the complainant by the third parties.
The AJ found that MO made a medical determination, and the fact that the
complainant disagreed with the determination was insufficient to prove
discrimination. Concerning the MO, the AJ found that complainant failed
to provide comparisons and therefore was unable to show that similarly
situated employees outside of her class were treated differently.
Further, complainant failed to establish that there was a casual
connection between the protected activity and the medical determination.
Concerning the WO, the AJ found that complainant failed to establish a
prima facie case on both theories of discrimination because complainant
failed to establish that she was treated differently from similarly
situated employees outside of her protected classes. The WO was
the firing range instructor and had no supervisory relationship to
complainant.
Concerning the SO, the AJ found that complainant failed to establish a
prima facie case of discrimination because complainant failed to establish
that the SO treated similarly situated employees outside of complainant's
protected class differently; that complainant failed to establish that
she was subjected to harassment based upon her sex and age; and that as
to the reprisal claim that complainant failed to establish a causal link
between protected activity and the adverse employment action.
A. Disparate Treatment�Sex and Age<6>
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case is a
three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); See also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the
sense that "but for" age, complainant would not have been subject to
the adverse action at issue). Complainant has the initial burden of
establishing a prima facie case of discrimination. A prima facie case
of discrimination based on sex or age is established where complainant
has produced sufficient evidence to show that: (1) she is a member of a
protected class; (2) she was subjected to an adverse employment action;
and (3) similarly situated employees outside her protected class were
treated more favorably in like circumstances.
For the 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.
McDonnell Douglas, 411 U.S. at 802. Throughout, complainant retains
the burden of proof to establish discrimination by a preponderance of
the evidence. It is not sufficient "to disbelieve the employer; the
fact finder must believe the plaintiff's explanation of intentional
discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993) (emphasis in original).
Complainant asserted that she felt singled out and treated more harshly
than others because of her age and sex. Complainant testified that S1
belittled her and embarrassed her over any error. Complainant testified
that S2 would have her shovel dead rabbits off the road, only to find out
later that police officers' duties purportedly did not include shoveling
dead rabbits. She testified that S3 treated her like dirt, belittled
her continually, and insinuated that she had memory problems, something
like Alzheimer's. Complainant testified S3 would not permit her to use
the dispatch phone for personal calls; that S3 would not allow her to
use the truck for patrols; that S3 refused to teach her how to drive a
jeep, even though she had been driving since she was sixteen years old;
that S3 denied her leave request when she needed to move, and that there
was surveillance on her home on one occasion, when she took sick leave
after her request for annual leave was denied; and that S3 denied her
sick leave when she was anemic. Complainant testified that she did not
know what S3 said to other officers because she was always on the road
patrolling the base.
Complainant also testified that SO had her go to a fitness for duty
examination.<7> Complainant asserted that SO went ballistic with her
one time and also issued her a Notice of Removal, even though previously,
SO issued her praise for her gate work.
The record reflects that although S1 was crude, with a filthy mouth,
harsh, and unprofessional, S1 was the same to practically all of his
employees and thus complainant was not singled out or treated differently
on the basis of her sex or age. The AJ found that complainant did not
establish that any treatment of her by S1 was due to her age or sex.
Further, the AJ found that management took effective and corrective
action and S1 resigned.
The AJ found that concerning S2's policy of requiring complainant to radio
in, that all police officers were required to call in. The AJ found that
the complainant did not prove that males or younger officers were treated
differently under this policy, and therefore there was no inference that
complainant's sex or age caused different treatment. Concerning the
allegations that S2 criticized her and demeaned her character, the AJ
found that the complainant did not establish a disparity in treatment,
and that the harassing behavior did not occur in her presence.
The AJ found that everyone who worked as a police office was required
to take the qualification test at the firing range no matter what shift
they worked. The AJ found that the evidence did not show that anyone
who worked a night shift was not scheduled for the test.
The testimony was that S3 was a firm, loud, by-the-book Navy chief,
and a plain spoken supervisor. S3 testified that everyone had to radio
in when they went on a restroom break; that was the policy, a standard
operating procedure, and it applied to everybody. S3 testified that
all police officers needed to go to the firing range to get tested.
S3 testified that the jeep was for the dog handler and he did not want
to teach complainant how to drive because of his responsibility for the
vehicle if it was damaged. There was other testimony that it was not
S3's duty to teach driving and that there were certain people charged
with that responsibility. S3 testified that he did not recall calling
complainant stupid or a bitch. S3 testified to frustration in dealing
with complainant, because she claimed she was not taught things when, in
fact, she was taught how to do things. S3 also testified that complainant
lied to him on several occasions, and that she lied to other people.
S3 denied that he told complainant that she was forgetful and should
consider retiring. However, S3 testified that complainant was forgetful
and he and others had concerns about her. For example, S3 testified
that on one occasion complainant stood at the flag pole for ten minutes
to raise the flag, raised the rope, but there was no flag on the rope.
S3 was concerned that he had to constantly show complainant how to do
things, such as gate procedures. S3 talked to complainant about his
concerns but at no time did he tell her that she needed to retire.
Concerning leave requests and leave policy, there was testimony that
seniority and staffing of the shifts were the factors considered.
S3 testified that he never turned down her sick leave. S3 testified that
concerning the use of blue ink rather than black ink, he was informing
complainant of Navy requirements.
SO testified that she believed that S1 treated complainant badly.
She testified that S3 went to the COP and advised the COP about what
appeared to be a sexual harassment incident concerning another co-worker.
The SO started an investigation and after the investigation she gave
the S1 his notice of removal. The SO testified that she did not receive
prior information concerning S1 from the complainant. The SO testified
it was routine to radio in during restroom breaks. SO testified that
the jeep was for the dog and the dog handler, and that police officers
had patrol cars for patrol work. SO testified that there was no need
for complainant to drive a jeep. SO testified that S3 did not call
complainant a bitch or stupid to SO, and that S3 was always trying to
work with complainant. SO testified that she did have a conversation with
COP and S3 over concerns of complainant's forgetfulness and inability to
retain information. SO testified that concerning days off or scheduling
for complainant that complainant was not denied requests due to age,
sex, disability, or reprisal reasons. SO testified that she investigated
the smoking problem immediately after hearing of complainant's concerns
about that issue. The SO testified that nobody was supposed to be using
the dispatch phone for personal phone calls. The SO testified that
complainant was sent to the fitness for duty physical by the COP due
to her making so many mistakes, such as the flag raising and taking her
gun to the gym, which was prohibited. The SO testified, when an officer
came to her and complained that complainant was approaching him to give
statements on her behalf, the SO gave complainant a letter asking her
not to do that on work time.<8> The SO testified that black ink is the
Navy standard. The SO testified that she issued the notice of proposed
removal due to the repeated problems with complainant's performance
including her inability to qualify on the firing range, and that SO
sent complainant to a fitness for duty exam because complainant stated
she locked up on the range and that she got paralyzed. The AJ found
that the complainant was requested to do hand exercises to strengthen
her hand, which she did, until she sprained her hand. The SO testified
that the complainant was sent to the galley, rather than dispatch where
complainant wanted to be sent, because on a previous occasion complainant
did not perform dispatch duties in a satisfactory manner.
Concerning remarks allegedly made by S2, the AJ found that the complainant
was not sure when the contents of any derogatory remarks were divulged
to her. Further, the AJ found that there was no probative evidence to
prove that the remarks were made, other than complainant's allegations.
The AJ found that the WO counseled and corrected complainant on how
to wear her uniform and that he was loud to overcome the noise of the
firing range. Initially complainant attributed the WO's actions for her
failing the weapons test. However, complainant also asserted that she
didn't pass the test due to the fact that she lacked the hand strength
to push and lock the slide load to the pistol. Also the record did
not reveal that the WO treated males, or younger employees differently.
Also, concerning the WO complainant has not established a causal link
between her earlier EEO activity and the actions of the WO.
The AJ found the complainant did not agree with the medical determination
of MO. The MO made a medical determination that complainant was not
physically or mentally fit for duty and recommended further evaluation.
Further the AJ found that complainant did not prove that there were
similarly situated police officers outside of her protected classes who
were treated differently.
We agree with the AJ's finding that complainant has not established
a prima facie case of age or sex discrimination, involving a specific
term, condition or privilege of employment. She neither established
that similarly situated employees outside her protected classes were
treated differently under similar circumstances, nor did complainant
offer sufficient evidence that would give rise to an inference of age
or sex discrimination (see also discussion, infra, concerning harassment
and hostile work environment). On many incidents, there was a conflict
between the testimony of complainant and other witnesses. The AJ's
factual findings are supported by substantial evidence. Also, the AJ
made reference to inconsistent testimony on behalf of complainant which
raised questions of credibility.
Assuming arguendo that a prima facie case of sex and age discrimination
has been shown with respect to certain agency actions, e.g., sending
complainant for a fitness for duty exam, and issuing complainant a Notice
of Proposed Removal, the agency articulated legitimate, nondiscriminatory
reasons for its actions. Complainant was required to carry a weapon
and pass the firing test; she sprained her hand and was required to
have the physical ability to use a weapon; and she was required to have
the emotional and mental stability to perform the duties of a police
officer. The record reflects that complainant failed to pass the test
and attributed her inability to pass the test due to the fact she did
not have the hand strength to pull back the pistol slide. The SO sent
her for the fitness for duty exam for this reason and subsequently issued
the Notice of Proposed Removal based on the MO's report. Complainant's
harassment and hostile work environment claim will be addressed next.
B. Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability or religion is
unlawful, if it is sufficiently patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138, (D.C. Cir. 1985).
In order to prevail on a claim of age-based harassment, complainant must
show that: (a) she was subjected to unwelcome verbal or physical conduct;
(b) the unwelcome verbal or physical conduct was related to her age;
(c) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile, or
offensive work environment; and (d) some basis exists to impute liability
to the employer, i.e., supervisory employees knew or should have known of
the conduct but failed to take corrective action. See Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477
U.S. 57, 64-65 (1986); 29 C.F.R. �1604.11(a)(d)(1995); Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998);
McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999).
In order to prevail on a claim of a gender or sex-based harassment,
complainant must show that: (a) she was subjected to unwelcome conduct;
(b) the unwelcome conduct was related to her gender or sex; (c) the
harassment had the purpose or effect of unreasonably interfering with her
work performance and/or creating an intimidating, hostile, or offensive
work environment; and (d) some basis exists to impute liability to the
employer, e.g., supervisory employees knew or should have known of the
conduct but failed to take corrective action. Id.
With respect to conduct between co-workers, an employer is responsible for
acts of harassment in the workplace that relate to race, color, religion,
sex, national origin, age or disability where the employer or its agents
or supervisory employees knew or should have known of the conduct, and
the employer failed to take immediate and appropriate corrective action.
See Rodriguez v. Department of Veterans Affairs, EEOC Appeal No. 019
53850 (August 29, 2000). Vicarious liability applies to harassment by
supervisors. EEOC Enforcement Guidance on Vicarious Employer Liability
for Unlawful Harassment by Supervisors, No. 915.002 at 3 (June 18, 1999).
In determining whether or not a hostile environment violates Title
VII or the ADEA, our regulations require that ". . . the challenged
conduct must not only be sufficiently severe or pervasive objectively
to offend a reasonable person, but also must be subjectively perceived
as abusive by the charging party." See Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 7 (March 8, 1994).
See also EEOC Compliance Manual, Section 2, Threshold Issues, at 2-18,
n.50 (citing Oncale v. Sundowner Offshore Servs., Inc., 423 U.S. 75,
80-81 (1998) that Title VII is �not a �general civility code,' and only
prohibits . . . harassment that is �so objectively offensive as to alter
the conditions of the victim's employment.'�)
The AJ found that complainant established that she belonged to protected
groups in that she was a female over the age of forty years old. The AJ
found that even if the incidents described by complainant were found to
be sufficiently severe or pervasive to create a hostile work environment,
there was no evidence that any treatment of complainant was motivated
by complainant's age or sex. The AJ also found that S1's treatment
of complainant and his attitude was consistent as to all employees,
males under 40 and females. The AJ found that there was no disparity in
treatment by S1 and that any incorrect actions of S1 were not related
to discrimination. For example, although S1 was crude and abusive to
everyone there was no evidence that any action concerning the complainant
was motivated by her age or sex.<9> Similarly, while S2 may have required
complainant to radio in when she went to use the restroom, there was
nothing in the record to suggest that S2 required complainant to radio
in due to her age or sex. Further, any alleged harassing behavior of S2,
or alleged derogatory remarks by S3, were not in complainant's presence.
Moreover, the AJ found that there was not sufficient evidence to show that
the remarks were sufficiently severe and/or pervasive, if they were made.
Also, when S3 did not teach complainant how to drive a jeep, this was
based on the fact that it was not S3's responsibility to teach driving,
that there were liability issues, and a concern that agency property might
be damaged, and not because of her age or sex. In addition, S3's alleged
statements concerning complainant were allegedly made to others and not
to the complainant, and S3 testified that he did not recall such remarks.
Complainant testified that she was not sure when the alleged remarks by
S2 and S3 were disclosed to her.
The MO made a medical determination. There was no evidence that it
was based on complainant's age or sex. The SO assigned complainant
to the galley when complainant sprained her hand. This assignment was
done without any difference in job title or compensation rate. The SO
testified that complainant was not assigned to the dispatch office because
on a previous occasion complainant did not perform the dispatch duties in
a satisfactory manner. The SO also sent complainant for a fitness for
duty exam because of her sprained hand. These actions are not evidence
of harassment.
Although COP may have initially ordered complainant to retake a training
course, she was not required to retake the course. COP also ordered a
surveillance of complainant's house when she called in and requested
sick leave. Complainant did not present any evidence that these
actions were based on her sex or age, or that there were similarly
situated individuals outside of her protected classes that were treated
differently. Concerning the actions of S3, the AJ found that there was
a conflict in the testimony as to whether S3 made disparaging remarks
about complainant to others and that complainant had not established by
a preponderance of the evidence that remarks were made.
The allegations that the WO was loud or had an arrogant behavior, or
made jokes about the complainant, are not sufficient to support a claim
of harassment. The WO denied that he made jokes about the complainant.
Further, the alleged remarks by WO did not take place in complainant's
presence and the remarks were not adverse to a term or condition of
employment.
The AJ basically found that complainant failed to present sufficient
evidence that any of the above actions were abusive, hostile, or taken
in order to harass complainant on a protected basis. We note that
the vast majority of the complainant's evidence had nothing to do with
complainant's age or sex, but were details on how she reacted to each and
every workday event she believed was harassment, or how she responded
to statements by opposing witnesses. In this respect, we note that
a reasonable person in complainant's position might find many of the
events she alleged that she endured to be difficult or frustrating.
However, many of the alleged incidents were due to rules or standard
operating procedures common to her police officer environment.
We agree with the AJ's finding that complainant has not established a
prima facie case of harassment or hostile work environment based on age
or sex. Further, we find there is insufficient evidence in the record
to establish a prima facie case of hostile work environment because
the complainant did not establish that she was subjected to unwelcome
conduct related to her age or sex.
We note that harassment claims are particularly susceptible to
fragmentation. The Commission has recognized that in the process
of fragmentation of complaints, an agency can improperly render
non-meritorious, otherwise valid and cognizable claims, in failing
to properly distinguish between factual allegations in support of
a legal claim and the legal claim itself. See Redmon v. Office of
Personnel Management, EEOC Request No. 05991100 (August 25, 2000).
Because complainant alleged that she was subjected to a hostile work
environment, it is also appropriate to consider the claims collectively.
Consistent with the Commission's policy, we find that taken individually
or together, the allegations of harassment raised by complainant
in her complaint were not motivated by her age, sex, or disability.
Complainant did not present sufficient evidence that she was subjected
to harassment due to age, sex, disability, or prior EEO activity.
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws in relation to a hostile work environment. The AJ found that
the complainant did not provide sufficient evidence that indicated that
the alleged harassment was based on her protected classes. Substantial
evidence supports the AJ's findings.
The actions taken by agency management have not been proven to have had
either the purpose or effect of harassing the complainant based upon
a discriminatory motivation. Accordingly, the Commission finds that
the complainant failed to show that she was subjected to a hostile work
environment on the alleged bases.
C. Reprisal
Complainant's allegations of reprisal only concern the matters raised in
complainant's second complaint, Agency No. 95-68890-004, i.e., Incidents
9 through 13.
The complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination. To establish a prima
facie case of reprisal discrimination, the complainant must show that
(1) she engaged in prior protected activity, (2) the acting agency
official was aware of the protected activity, (3) she was subsequently
disadvantaged by an adverse action, and (4) there is a causal link between
the protected activity and the adverse action. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)).
We additionally note that the statutory reprisal clauses prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity. 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.
The AJ found that the complainant participated in protected EEO activity
which involved the actions alleged in Agency No. 95-68890-001 and that
her protected EEO activity was common knowledge. The record does not
reflect any EEO activity prior to her employment. We find that the
third element has been satisfied in that the agency issued her a notice
of proposed removal. It is therefore clear that complainant has met the
first three criteria. However, the AJ found that complainant did not
establish a causal link between the protected activity and any adverse
action. The AJ found that there was no nexus between her protected
activity and agency actions. Nevertheless, we will assume arguendo that
there was a causal link between the protected activity and agency actions.
Complainant has not sufficiently delineated the frequency and nature of
the jokes involved in the January 16, 1995, training class. The WO denied
making jokes about complainant. In addition, the agency articulated
legitimate, nondiscriminatory reasons for assigning complainant to the
galley, issuing complainant a Notice of Proposed Removal, and sending
complainant for a fitness for duty examination, i.e., she was required
to carry a weapon and pass the firing test; she sprained her hand; and
she was required to have the emotional and mental stability to perform
the duties of a police officer. The MO determined that complainant's
medical documentation was insufficient to return her to her position as
a police officer. A review of the record establishes that complainant
failed to present sufficient evidence that these reasons were either
a pretext for discrimination or in retaliation for complainant's prior
EEO activity.
The AJ found that when the complainant reported to the firing range in
attire that the WO deemed inappropriate, the WO counseled and corrected
her on how to wear the uniform and to ensure firing range safety.
The WO noted that if he was loud it was to overcome the noise of the
firing range. Although complainant asserted that she did not pass the
test due to the criticism, the record reflects that she also forgot how
to fully operate the pistol. The AJ found that complainant presented no
credible evidence to suggest that because the WO was loud to her, that
she was demeaned or humiliated, causing her to not qualify on the test.
Substantial evidence in the record supports the findings and conclusions
that the agency did not engage in reprisal discrimination.
D. Disability Discrimination
In the instant case complainant did not file a complaint on the basis of
disability. The Report of Investigation states that the EEO investigator
expanded the bases to include disability discrimination because of the
close association of the actions at issue and complainant's medical
condition. In order to establish a prima facie case, complainant must
demonstrate that: (1) she is an "individual with a disability"; (2) she is
"qualified" for the position held or desired; (3) she was subjected to
an adverse employment action; and (4) the circumstances surrounding the
adverse action give rise to an inference of discrimination. Lawson v. CSX
Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Complainant must establish that she is a �qualified individual with a
disability� within the meaning of the Rehabilitation Act. An �individual
with disability� is a person who has a record of, or is regarded as
having a physical or mental impairment which substantially limits one or
more of that person's major life activities, i.e., caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. See 29 C.F.R. � 1630.2(j).
The AJ found that the complainant did not establish that she was an
otherwise qualified disabled employee, who with, or without, reasonable
accommodations, could perform the essential functions of the police
officer position. The AJ also found that no evidence was presented
on the issue of accommodation. On appeal, no contention concerning
a disability claim or accommodation has been raised. Accordingly, we
find that complainant does not dispute the AJ's finding that she was
not subject to any discrimination based on disability.
CONCLUSION
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies, and
laws. 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 decision.
Substantial evidence supports the AJ's findings and conclusions.
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 (OF) 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
April 11, 2002
Date
1 The incidents are set forth, individually, in the agency's Second
Notice of Amended Acceptance of Discrimination Complaint. Because of
the numerous incidents, the Commission's policy concerning fragmentation
will be discussed later in the decision.
2 WO, a lieutenant (male, age 36), was a firing range instructor and
had no supervisory responsibility in relation to the complainant.
3 During complainant's police officer service she had numerous
supervisors.
4 The decision in EEOC Appeal No. 01952033 did not identify her then
current supervisor. The AJ's Finding of Fact and Conclusions of Law in
the instant appeal identifies complainant's initial shift supervisor (S1)
as complainant's supervisor from September 8, 1992 through April 12, 1993.
The complainant worked under numerous shift supervisors during the periods
in question. The decision in EEOC Appeal No. 01952033 did not identify
the additional superior officer who allegedly harassed her.
5 An agency investigation, initiated by S3 before he was complainant's
supervisor, concluded that S1 was abusive to his subordinate employees.
S1 resigned in February 1994. High level management awareness of sexual
harassment by a supervisor is not necessary to impose liability for
sexual harassment.
6 The parties and the AJ essentially consolidated and amalgamated
complainant's disparate treatment claims with complainant's harassment and
hostile environment claim. However, the standard of proof for a disparate
treatment claim is different for a harassment and hostile environment
claim. Accordingly, for convenience, the Commission's review tracks the
parties and the AJ's review, but endeavors to faithfully ensure integrity
of the standards applicable to each claim. Disparate treatment claims
normally focus on a specific term, condition or privilege of employment,
e.g., removal, training, assignment, promotion. Harassment and hostile
environment claims, where a complainant has not alleged disparate
treatment regarding a specific term, condition or privilege of employment,
consider incidents cumulatively. See EEOC Enforcement Guidance on
Vicarious Employer Liability for Unlawful Harassment by Supervisors
(June 18, 1999)(distinguishing between harassment resulting in tangible
employment actions and harassment not resulting in tangible employment
actions). However, harassment and hostile work environment may give
rise to an inference of discrimination in a disparate treatment context.
7 Complainant was referred for a medical examination on May 17,
1994, and on February 7, 1995, due to questions about her capacity
to meet the medical requirements of her position. The focus of the
first examination was on her mental status. Complainant was found fit
for duty. However, the SO testified that the package to the doctor
was incomplete. Following the second examination, a psychological
assessment was ordered. A clinical psychologist conducted a mental
status examination and psychological testing, and it was determined that
complainant was medically unqualified for the position of police officer.
Complainant does not allege that the examinations violated Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
8 The complainant is entitled to a reasonable amount of official time to
present the complaint and to respond to agency requests for information,
if otherwise on duty. Equal Employment Opportunity Management Directive
for 29 C.F.R. part 1614 (EEO-MD-110), at Ch. 6, VIII C (November 9, 1999).
Witnesses who are federal employees are in a duty status when their
presence is authorized or required by Commission or agency officials
in connection with a complaint. Id. at 6-15. The Commission did not
contemplate the use of official time for purposes of contacting witnesses,
except as indicated above. Id.
9 The fact that S1 may have been, in some respects, an "equal opportunity
harasser" would not immunize his behavior. We have explicitly rejected
the theory that an "equal opportunity harasser" cannot be found to have
committed sexual harassment. See Wild v. Department of Defense, EEOC
Appeal No. 01984101 (September 12, 2000).