01a40730
07-07-2005
Tamara L. Terry, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Tamara L. Terry v. Department of the Army
01A40730
July 7, 2005
.
Tamara L. Terry,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A40730
Agency No. AVKCFO0004A0180
Hearing No. 370-A2-X2273
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 GS-401-11 Biological Sciences
Environmental Manager, at the agency's U.S. Army Corps of Engineers, San
Francisco District, San Francisco, California filed a formal EEO complaint
on or about March 6, 2001, alleging that the agency discriminated against
her on the basis of sex (female) and in reprisal for prior EEO activity
when:
(1) on October 25, 2000, complainant received a level four rating,
needs improvements, on her senior civilian evaluation report for the
period March 29 through October 31, 1999; and
complainant was sexually harassed by a co-worker.<0>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).<0> Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ initially affirmed the dismissal of claims (i) - (iii), however,
she agreed to consider claim (i) as background evidence. The AJ then
assumed arguendo that complainant established a prima facie case of
discrimination and retaliation, and found that the agency articulated a
legitimate, nondiscriminatory reason for her performance rating; namely,
complainant's professionalism had come into question in two ways: (1)
after being told to cease contact with the contractors, she continued
to talk with them, and in fact, went out to lunch with them;<0> and (2)
complainant's supervisor had instructed complainant not to work, even for
free, while on vacation and she disregarded his instructions.<0> The AJ
found that complainant failed to establish pretext. In so finding, the
AJ noted that complainant alleged that her supervisor stated that she did
not deserve the rating, and perhaps she should file an EEO or a grievance
to take care of it. The AJ found that such comment, even assuming it
was made, still does not indicate that sex-based discrimination or
retaliation motivated the rating she received. The AJ additionally
noted that complainant's supervisor denied making such comment.
The AJ then addressed complainant's contention that she was sexually
harassed by a co-worker (C1), and that the agency failed to take
appropriate action to stop the harassment. The AJ found that C1 stated
that although he did occasionally engage in conversations of a sexual
nature with complainant, complainant herself discussed sexual matters and,
as such, the sexual banter was mutual. The AJ found that complainant
failed to show that the conduct was sufficiently frequent to create a
hostile work environment. Additionally, the AJ found that the conduct was
verbal and that although some of the statements were sexually graphic,
they were not physically threatening. In addition, the AJ found no
evidence to indicate that such comments interfered with complainant's
work performance. The AJ further credited C1's testimony that
complainant, herself, openly discussed sexual matters in the workplace.
The AJ additionally found that the chronology of events indicates that
complainant did not raise the allegation of sexual harassment against
C1 until after C1 complained about complainant spreading rumors that
he was racist. The AJ therefore, concluded that complainant was not
offended at the time that C1 made the remarks in question. The AJ also
found not credible complainant's stated reasons for not having reported
C1's sexually offensive comments. In sum, the AJ found that most of
C1's sexual comments were not egregious and infrequent.
The AJ addressed complainant's contention that C1 touched her angora
sweater, noting that complainant herself stated that she believed C1
did so because �he likes to touch fabric� and �he doesn't do it for very
long.� The AJ found no indication that C1 touched complainant in a sexual
manner or on a part of her body that would be considered inappropriate.
Further, the AJ found that complainant herself engaged in sexual
discussions and, as such, she could not have been easily offended by
comments of a sexual nature. The AJ concluded that complainant has not
proven that she was subjected to a hostile or abusive work environment
based on an objective or subjective standard. The agency's final order
implemented the AJ's decision.
On appeal, complainant restates her version of the facts and arguments
previously made at the hearing. Complainant contends that the AJ should
have reversed the agency's dismissal of issues, contending that claims
(ii) and (iii) were �derivatives� of issue (1), and that the AJ should
have permitted her to amend her complaint. In response, the agency
stands on the record, and requests that we affirm its final order.
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.
Initially, we note that the AJ did not abuse her discretion in refusing
to allow amendment of the complaint at such a late date, to include
16 additional issues. We note that Administrative Judges have broad
discretion in the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-
MD-110). Chapter 7, (revised November 9, 1999); Bennett v. Department of
the Navy, EEOC Request No. 05980746 (September 19, 2000). Additionally,
we find that issues (i), (ii) and (iii) were properly dismissed because
they were not timely raised.
As to issue (1), we note that the allocation of burdens and order of
presentation of proof in a Title VII case alleging disparate treatment
discrimination is a three step procedure: complainant has the initial
burden of proving, by a preponderance of the evidence, a prima facie case
of discrimination; the burden then shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its challenged action; and
complainant must then prove, by a preponderance of the evidence, that
the legitimate reason offered by the employer was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Here, assuming arguendo that complainant established
a prima facie case of sex and reprisal discrimination, the agency has
articulated legitimate, nondiscriminatory reasons for its action.
Additionally, the AJ's finding that complainant has not presented
persuasive evidence of pretext is supported by substantial evidence of
record.
As to issue (2), we note that harassment of an employee that
would not occur but for the employee's protected status under the
anti-discrimination statutes is unlawful, if it is sufficiently patterned
or pervasive. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
In order to prove a case of harassment, the complainant must establish,
by a preponderance of the evidence, the existence of five elements: (1)
she is a member of a statutorily protected group; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected group; (3) the harassment complained of was based on the
statutorily protected group; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with her work environment and/or creating an intimidating,
hostile, or offensive work environment; and (5) that there is a basis
for imputing liability to the employer. McLeod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999). Here, the
AJ's finding that some of C1's conduct was not unwelcome (as complainant
also engaged in sexual discussions with C1) is supported by substantial
evidence of record. Additionally, the AJ's finding that the harassment
did not affect a term or condition of complainant's employment and/or
have the purpose or effect of unreasonably interfering with her work
environment and/or creating an intimidating, hostile, or offensive work
environment, is supported by substantial evidence of record.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
sex. 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 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
July 7, 2005
__________________
Date
0 1The record indicates that complainant initially raised three additional
claims of discrimination; namely (i) being removed, on October 21, 1999,
from the Humboldt project; ii) not being recognized in or about January
2000, for the Humboldt project and (iii) being subjected to constant
threats of retaliation from her first and second line supervisors.
The agency dismissed all three allegations for untimeliness.
0 2On April 30, 2003, complainant submitted a Motion to Amend (to include
16 additional issues) , which the AJ subsequently denied because it was
untimely and unduly increased the scope of the complaint.
0 3Complainant's supervisor explained that there was adverse media
attention and potential lawsuits relating to oil spills, and as such,
the Army Corps of Engineers was attempting to distance itself from the
contractors, and complainant's contact with them was contrary to this
goal.
0 4Complainant's supervisor explained that if complainant was working and
not on official travel, there could be problems with Worker's Compensation
should she get injured.