01A33736_r
09-17-2003
Ruthie M. Roberts, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Ruthie M. Roberts v. Department of the Army
01A33736
September 17, 2003
.
Ruthie M. Roberts,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A33736
Agency No. ARFTJACK02MAY007
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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.
The record reveals that during the relevant time, complainant was
employed as a Clothing Fitter, WG-5, at the agency's Directorate of
Logistics and Engineering, Clothing Initial Issue Point in Fort Jackson,
South Carolina. Complainant sought EEO counseling and subsequently filed
a formal complaint on May 17, 2002, alleging that she was discriminated
against on the bases of race (African-American) and sex (female) when:
(1) management failed to protect her from a co-worker when she complained
that he had sexually harassed her on February 25 and 26, 2002; and
(2) on February 27, 2002, complainant was issued a Letter of Warning.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency found no discrimination. The agency concluded that
complainant failed to establish a prima facie case of sexual harassment
or a prima facie case of race discrimination. Furthermore, the agency
concluded that assuming arguendo complainant established a prima facie
case of sexual harassment and race discrimination, complainant failed
to present any evidence which demonstrated that the agency's articulated
reasons for its actions were a pretext for discrimination
Claim (1)
To establish a prima facie case of sexual harassment, a complainant
must show that: (1) she belongs to a statutorily protected class; (2)
she was subjected to unwelcome conduct related to her gender, including
sexual advances, requests for favors, or other verbal or physical conduct
of a sexual nature; (3) the harassment complained of was based on sex;
(4) 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 (5) there is a basis for imputing
liability to the employer. See McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
The record reflects that complainant informed her supervisor on February
26, 2002, that she determined a co-worker's behavior was unwelcome when
on February 25, 2002, he walked past and closely behind complainant;
and on February 26, 2002, when he followed complainant into the warehouse.
Applying the standards set forth above, however, the Commission finds
that there is substantial evidence of record supporting the agency's
determination that complainant was not subjected to sexual harassment.
The record contains a copy of a transcript of a July 24, 2002 fact
finding conference. Therein, complainant testified that on February 25,
2002, the co-worker did not stop behind her and just walked past her;
did not say anything to her; and made no noises or gestures. As to the
February 26, 2002, complainant stated that because the co-worker saw her,
he started following her into the warehouse. We find that the weight
of evidence shows that the events of February 25 and 26, 2002, were not
sufficiently severe or pervasive to affect complainant's work environment.
See Bloomer v. Department of Transportation, EEOC Petition No. 03980137
(October 8, 1999).
Claim (2)
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Regarding claim (2), the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non- discriminatory
reasons for its employment actions. The agency determined that complainant
was issued the March 7, 2002 Letter of Warning for failure to follow her
Supervisor's instructions. The record in this case contains complainant's
Supervisor's testimony during the July 24, 2002 fact-finding conference
identified above. Therein, the Supervisor stated that complainant was
issued the letter of warning for failing to follow her instructions.
The Supervisor further stated that on February 27, 2002, she went to
see complainant after receiving word that complainant was talking loud
and using profanity in front of soldiers. Furthermore, the Supervisor
testified that she repeatedly asked complainant to lower her voice and
report to the break room so they could privately resolve a dispute between
complainant and a co-worker. According to the Supervisor, her second line
supervisor instructed her to issue a Letter of Warning to complainant
for her unprofessional behavior. Complainant has not demonstrated that
the agency's articulated reasons for her letter of warning were a pretext
for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 17, 2003
__________________
Date