01a50160
04-14-2005
Sharon K. Munce, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Sharon K. Munce v. Department of Energy
01A50160
April 14, 2005
.
Sharon K. Munce,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A50160
Agency No. 02-0191-BPA
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. 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. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant
was employed as an Electrical Materials Handler, Foreman II at the
agency's Bonneville Power Administration (BPA) located in Vancouver,
Washington. Complainant sought EEO counseling and subsequently filed
a formal complaint on November 8, 2002. Complainant alleged that she
was discriminated against on the bases of her sex, age (D.O.B. 1944),
and reprisal for prior EEO activity when:
in October 2002, she was relocated to the Transmission Business Line,
Ross Complex, in Vancouver, Washington;
on September 5, 2002, she was issued a Letter of Counseling; and
on September 26, 2002, she was issued a Letter of Reprimand.
Complainant also alleged that she was subject to on-going harassment
based on her sex, age (DOB 1944) and reprisal for prior EEO activity when:
from approximately October 2002 to February 2003, while she was assigned
to the Tank Farm, a male co-worker (C1) would drive past her trailer for
no apparent reason, even after she brought his actions to the attention
of management;
approximately June 2002, she was reassigned to the Ross Complex and
told not to go near C1;
approximately February 2002, C1 took over the truck drivers who were
under her supervision;
approximately October 2001, C1 interfered with the work direction she
had given to an employee under her supervision.
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 concluded that management had articulated
legitimate, non-discriminatory reasons for its actions that complainant
failed to rebut. Specifically with regard to claim (1), the agency
found that complainant's permanent duty station was at the Ross Complex,
and that she was not reassigned but, rather, relocated to that facility.
The agency also found that it was not only complainant but her entire
crew was relocated from Shelton Complex, where they were detailed, to the
Ross Complex. Regarding claim (2), the agency found that on September 5,
2002, management issued a counseling letter to complainant because she
engaged in a conversation with an employee regarding C1. The agency
states that during the conversation complainant relayed her opinion
that her �current problems are the result� of C1 complaining about her.
The agency further found that management counseled complainant because
her conduct was unacceptable. Specifically, the agency found that any
comments by complainant regarding C1 can be interpreted as retaliation
by complainant against C1. The agency noted that complainant accused C1
of harassing her and C1 accused complainant of harassing him. Regarding
claim (3), the agency stated that management issued a reprimand letter to
complainant for her violent and inappropriate conduct. Specifically, the
agency found that complainant made several statements about her experience
with guns and her ability to use them. The agency argued that at one
time, she told two contractor employees that they were �lucky she did
not shoot them.� The agency also found that complainant was admonished
about her conduct on three separate occasions in February and March 2002,
and was required to undergo supervisory training.
Regarding complainant's claims of harassment, the agency concluded that
complainant was not subjected to an hostile or abusive work environment.
Specifically, regarding claim (4) the agency found that C1's duties
require him to drive all over the complex to conduct inspections
as shipments arrive, and that he must drive past the complainant's
trailer from time to time. The agency stated that C1's actions do not
interfere with complainant's ability to perform her duties, or alter
complainant's work environment. Regarding claim (5), the agency found
that complainant was instructed not to go near C1, and that C1 was
instructed to keep away from complainant and not have any communication
with her. The agency noted that these two employees were not on good
terms and C1 had complained in a grievance that he did not want to work
close to complainant. Accordingly, the agency stated that management
felt that keeping these employees apart would be conducive to improved
working conditions. Finally, the agency found that there is no evidence
that claims (6) and (7) occurred, but even if they occurred they were
isolated incidents of episodic conduct. Therefore, they were not
sufficiently severe or pervasive to create an abusive working environment.
Complainant makes no new contentions on appeal.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case claiming
discrimination is a three-step process set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See Hochstadt
v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F. 2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases); 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). 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 reason 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). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
To ultimately prevail, complainant must prove, by a preponderance of
the evidence, that the agency's explanation is pretextual. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
This 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 the complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. U.S. Postal Service Bd. Of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900150 (June 28, 1990).
Assuming arguendo, that complainant has established a prima facie case of
sex, age and reprisal discrimination, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the record reveals that complainant was relocated because the project at
Shelton where she was detailed was completed and there were no other field
projects where she could have been detailed at the time. The record also
reveals that complainant was counseled for her inappropriate comments
regarding C1 and issued a reprimand letter for unacceptable conduct.
We also find that complainant has not established that the agency's stated
reasons were pretext intended to mask discriminatory intent. In reaching
this conclusion, we note that complainant failed to rebut the agency's
reasons. Specifically, complainant has not established that there were
other field projects where she could been detailed. Complainant also has
not established that she made no comments about C1 nor that her conduct
was acceptable. Accordingly, we find that complainant has not shown,
by a preponderance of the evidence, that the agency's actions were based
on discriminatory intent rather than the reasons proffered by the agency.
Harassment is actionable only if the incidents to which complainant
has been subjected were sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive work
environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 91993);
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998). To establish a prima facie case of hostile work
environment harassment, complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998). Upon review, we find
that complainant failed to establish a prima facie case of harassment.
Specifically, we find that a reasonable fact-finder could not conclude
that challenged incidents, taken together, were sufficiently severe or
pervasive to establish a hostile work environment. We also conclude that
complainant presents insufficient evidence that she was singled out for
this treatment because of her protected classes. The record does not
support a finding that complainant was subjected to the alleged conduct
based on her sex, age or reprisal.
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 FAD.
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
April 14, 2005
__________________
Date