01A14090
03-29-2002
Tanna N. Herchenhahn, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Tanna N. Herchenhahn v. Department of the Army
01A14090
March 29, 2002
.
Tanna N. Herchenhahn,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A14090
Agency Nos. ANBKFO0002A0050; ANBKFO0002A0020; ANBKFO0006A0390
Hearing No. 130-A1-8024X
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 decision.
The record reveals that complainant, a GS-11, Configuration Managment
Specialist at the agency's Aviation and Missile Command facility, filed
a formal EEO complaint on December 1, 1999, alleging that the agency had
discriminated against her on the bases of sex (Female) and reprisal for
prior EEO activity when:
(1) on August 4, 1999, the acting supervisor (AS1) made suggestive
comments during a conversation to the effect that she was promoted by
her former supervisor because she was sleeping with him, listened to
her private conversation behind closed doors, and interfered in the
Outrider Project that she worked on;
her job duties were gradually taken away;
she was counseled for engaging in personal activities that allegedly
took place while she was on temporary duty (TDY); and
on April 21, 2000, she received a low performance rating.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 8, 2001, the parties were instructed
to submit their Proposed Findings of Fact and Conclusions of Law which
they claimed merited a decision being issued in their favor. The AJ
issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish that she was
subjected to sexual and/or gender harassment. In particular, the AJ found
that the statement �everyone knows why [he] promoted you� on its face does
not carry any sexual connotation. The AJ also noted, that even if the
statement did carry a sexual connotation, it was an isolated statement.
In regard to complainant's performance appraisal, the AJ found that a
rating of eighty-two is not an adverse employment action. In addition,
the AJ noted that, even if it was considered an adverse employment
action, the agency has articulated legitimate nondiscriminatory reasons.
Specifically, the AJ noted that the record demonstrated that complainant
did not show up for meetings and when she did, she would not share
information. The AJ also noted, inter alia, that complainant was
counseled on September 7, 1999, for improper use of e-mail, for
distribution of questionable material.
The AJ also concluded that complainant's duties were diminished because
she had requested a leave of absence, due to personal and family problems.
Accordingly, AS1 took over complainant's duties in preparation of her
absence. In regard to being counseled while on TDY, the AJ determined
that complainant was not subjected to an adverse employment action.
Specifically, the AJ noted that the record establishes that the counseling
was made part of complainant's personnel record.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
The Commission finds that the agency has articulated a legitimate
nondiscriminatory reason for its actions. Specifically, we find that
the record establishes that rating was based on her communications
and working relationships. The record establishes that complainant
was difficult to talk to and failed to show up for scheduled meetings.
In addition, the record reflects that although complainant was counseled
for her behavior, there was no intention for the counseling to be included
in complainant's personnel file.
The Commission also finds that AS1's suggestive comment and eavesdropping
on August 4, 1999, while inappropriate does not rise to the level of
creating a hostile or abusive work environment. It is well-settled that
an isolated incident is usually not sufficient to state a harassment
claim. Although complainant asserts that there were other incidents,
these two incidents occurred in 1993 and 1994 respectively, these events
were not reported when they occurred. The Commission further finds
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination.
Based on the foregoing, the Commission finds that grant of summary
judgment was appropriate, as no genuine dispute of material fact exists.
We find that the AJ's decision properly summarized the relevant facts
and referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus or retaliatory motive toward
complainant's protected classes. Therefore, after a careful review of
the record, including complainant's contentions, 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
March 29, 2002
__________________
Date