01A41043
06-03-2004
Sheryl L. Wimbush, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Sheryl Wimbush v. Department of the Army
01A41043
June 3, 2004
.
Sheryl L. Wimbush,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A41043
Agency Nos. ARFTMCPH01MAY0003;
ARFTMCPH02JUN0015
Hearing Nos. 110-2003-08214X;
110-2003-08215X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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 affirms the agency's final order.
The record reveals that complainant, a Customer Service Representative
GS-0544-06 at the agency's Headquarters, U.S. Army Garrison, Fort
McPherson, Georgia facility, filed a formal EEO complaint on June 6, 2002.
She alleged that the agency had discriminated against her on the bases
of her race (African-American), color (black) and sex (female) when:
(1) the agency assigned her to the Job Information Center desk;
(2) her supervisor misplaced her Official Personnel File (OPF);
(3) her supervisor placed a call to complainant's daughter's physician;
(4) complainant received a Letter of Reprimand and a Letter of
Counseling; and,
(5) complainant was subjected to a hostile work environment.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that even assuming that complainant established a prima
facie case of race, sex and color discrimination, complainant did not
establish she had been subjected to a hostile work environment. The AJ
determined that e-mails transmitted between complainant's supervisor (S1)
and a co-worker, although inappropriate and unprofessional, occurred
before S1 became complainant's supervisor and were not directed at
complainant's race or color.<1> In addition, the other incidents in
question were not shown to be based on complainant's race or color but
occurred because of legitimate reasons. For instance, complainant had
been given a Letter of Reprimand and a Letter of Counseling because she
had been rude to co-workers, to customers who visited the Job Information
Center and to her supervisors. The AJ further determined that complainant
and her supervisors had personality conflicts and a great deal of
friction but clashes between them were not based on complainant's
protected classes and did not create a hostile work environment.
The agency's final order implemented the AJ's decision.
On appeal, complainant argues that the e-mails were direct evidence of
discriminatory animus based on complainant's race. She contends that
the AJ made numerous errors especially in accepting the testimony of
the agency's witnesses without question and without giving equal weight
to complainant's statements. Complainant argues that the evidence
supported that she was treated differently and less favorably because
her co-workers were not subjected to the same discipline when they were
late to staff meetings.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We consider the question whether the e-mails were direct evidence of
discrimination. Direct evidence of discrimination is any statement made
by an agency official that, on its face, demonstrates a discriminatory
or retaliatory motive and is linked to the complained of adverse action.
EEOC Policy Guidance on Recent Developments in Disparate Treatment Theory,
EEOC Notice No. 915.002 at 16 (July 7, 1992). Applying this principle,
we conclude that the e-mails do not, on their face, demonstrate bias
or a retaliatory motive. Although they indicate a level of dislike
and negativity, it is not apparent that the writers were referring to
complainant's race, color or gender. We conclude, therefore, that the AJ
was correct to apply a circumstantial evidence theory of discrimination.
Turning to the merits of complainant's claim of discrimination, we
reviewed the record on appeal and conclude that the AJ's findings of
fact are supported by substantial evidence in the record and they will
not be disturbed on appeal. Complainant has failed to demonstrate by
a preponderance of the evidence that the agency did not have legitimate
reasons for taking the actions in question or that its proffered reasons
were a pretext to hide discrimination. Specifically, complainant did
not refute that in being assigned to the Job Information Center, she
was treated the same as all of her co-workers who had duties related
to the Center. Similarly, complainant did not refute that she made
rude statements to co-workers and others for which she received a
Letter of Reprimand. As the AJ stated, complainant did not demonstrate
that others showed a similar disregard for their supervisors but were
not disciplined. 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 order.
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
June 3, 2004
__________________
Date
1The AJ's decision described the e-mails
as referring to complainant as �ignert worker bee�, �whining crybaby�
and �that boxer� who tried to use big words she does not understand.
Decision p. 13.