Ruthie M. Roberts, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 17, 2003
01A33736_r (E.E.O.C. Sep. 17, 2003)

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