0120080252
01-21-2010
Traci L. Raney, Complainant, v. John McHugh, Secretary, Department of the Army, Agency.
Traci L. Raney,
Complainant,
v.
John McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080252
Agency No. ARRRAD06SEP03823
DECISION
On October 18, 2007, complainant filed an appeal from the agency's
September 18, 2007 final action concerning her equal employment
opportunity (EEO) complaint alleging 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. For the following reasons, the
Commission AFFIRMS the agency's final action.
At the time of events giving rise to this complaint, complainant worked
as a Management Analyst, GS-343-11, at the agency's Red River Army Depot,
Texarkana, Texas.
On October 17, 2006, complainant filed an EEO complaint wherein
she claimed that she was discriminated against on the basis of sex
(female) when she was harassed between October 2004 and August 11,
2006, by security guards posted to gates who frequently stopped her
for vehicle inspections. Complainant claimed that management failed
to take corrective action when she complained about the harassment.
Complainant subsequently amended her complaint on November 6, 2006,
to include the basis of reprisal for prior protected EEO activity under
Title VII when she received a summons in a criminal case filed with the
United States District Court, Texarkana Division.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final action pursuant to 29
C.F.R. � 1614.110(b).
Initially, the agency reviewed the claim of reprisal and dismissed
it on the grounds of failure to state a claim. The agency noted that
complainant was not issued a citation for committing a criminal act or
traffic offense by any law enforcement official of the Depot at the time
of the incident on August 11, 2006, or thereafter. The agency stated
that the summons and complaint that was issued to complainant was issued
by the Assistant United States Attorney on behalf of the United States
Attorney for the Eastern District of Texas. The agency determined that
complainant improperly filed this claim against the agency.
The agency determined with regard to the claim of harassment based
on sex that complainant failed to prove that she was subjected to
discrimination as alleged. The agency stated that complainant was not
stopped for vehicle inspections more frequently than other employees of
either sex. According to the agency, during the period of March 2, 2005 -
October 19, 2005, there were 1078 vehicle stops of which 250 were females
and 828 were males. The agency stated that complainant was stopped five
times during this period as were two other females and eight males.
The agency stated that assuming complainant established a prima facie
case of sex discrimination, it took prompt and effective remedial action
in response to complainant's harassment claims. The agency noted that
on June 22, 2005, the Director, for Plans, Training, Mobilization,
and Security responded to complainant's concerns by having the security
guards daily inspection logs reviewed. The agency stated that further
actions followed, including instructions to complainant to call the
Director on his cell phone each time she was stopped. The agency noted
that complainant stated that she made only two such telephone calls. The
agent concluded that this lack of action on the part of complainant is
evidence that the perceived harassment had stopped. The agency determined
that complainant failed to present sufficient evidence to establish that
management's actions were discriminatory.
On appeal, complainant contends that the investigation did not properly
address the full scope of the harassment.
In response, the agency asserts that complainant was given every
opportunity to develop the record of her complaint. The agency notes
that complainant was represented by counsel, had the opportunity to
present her side of the story, called witnesses, presented evidence and
questioned agency witnesses. The agency maintains that its final action
and report of investigation discuss in detail evidence regarding the
frequency with which complainant was stopped for inspections.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant
must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant alleges that she was subjected to a hostile work environment.
To establish a prima facie case of hostile work environment, a complainant
must show that: (1) s/he is a member of a statutorily protected class;
(2) s/he 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); 29 C.F.R. �1604.11. 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). Further,
the incidents must have been "sufficiently severe and pervasive to
alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
An agency is responsible for acts of harassment in the workplace
by complainant's co-workers where, the agency knew (or should have
known) of the conduct, and failed to take immediate and appropriate
corrective action. Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999); see Policy Guidance on Current Issues of Sexual Harassment (March
19, 1990); Villanueva v. Department of Homeland Security, EEOC Appeal
No. 01A34968 (August 10, 2006). The same standard is applied in a case
of non-employees, but the employer's control over such individuals'
misconduct is considered. Enforcement Guidance: Vicarious Liability
for Unlawful Harassment by Supervisors.
Initially, we shall address the claim concerning complainant receiving a
summons in a criminal case emanating from an incident on August 11, 2006,
where complainant refused an order from a security guard to consent to an
inspection of her vehicle. The agency stated that the summons was issued
by the Department of Justice and not an agency official. In light of
the fact that the agency is not the party prosecuting complainant in the
criminal matter, we find that complainant's claim of reprisal fails to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). However, we find
to the extent complainant is alleging that the agency improperly stopped
her car on August 11, 2006, to conduct a search, we will consider this
issue in conjunction with her overall harassment claim.
Complainant claimed that starting in October 2004, security guards posted
at the Depot's gates frequently stopped her for vehicle inspections.
Complainant stated she was stopped for inspection on 30 occasions between
October 22, 2004 and September 18, 2006. Complainant maintains that
she was stopped a disproportionate number of times due to the fact that
she is a woman and how she dressed. In addition to her regular duties,
complainant was an aerobics instructor. Agency officials denied that
complainant was subjected to a disproportionate number of inspections
and maintain that her sex was not a factor. According to the agency,
the security guard force was informed each day of the number of vehicles
to inspect. There was also an assigned sequence whereby one vehicle would
be inspected after a specified number of vehicles had entered the gate.
The Director stated that complainant was one of four or five or five to
seven other people who were stopped a bit more than average. He stated
that two were males and the rest were females. The Director further stated
that he did not know why some vehicles were inspected more than others
but he did not think the difference was indicative of harassment.
The record reflects that one security guard stated that during several
different tours of duty while on various gates, he witnessed contract
guards pull over complainant regardless of the inspection count, to
see what she looked like. He stated that he heard some of the guards
say "here she comes, let's pull her over and see what she has got on
today." He stated that when she questioned the reason for pulling her
over, they said it was the count, but it was not. Another guard stated
that he witnessed complainant's vehicle being stopped for inspection
even though her vehicle was not the number on the vehicle inspection
roster. He further stated that National Guard soldiers would call
the patrol units to come to the gate just to see how complainant was
dressed that day. This guard claimed that he informed a Lieutenant
of the harassment but the Lieutenant stated that the guards were just
doing their job. Additionally, the Director of Maintenance, who was
complainant's Supervisor, stated that he told the Chief of Staff that
the guards were picking on complainant, but the Chief of Staff told him
to "shut the hell up." Several guards denied that their searches of
complainant's vehicle were motivated by her sex. A female guard who
conducted eight of the 30 inspections of complainant's vehicle stated
that she did not believe complainant's sex was a factor in the searches.
Complainant acknowledged that no remarks were made about her appearance
during the inspections.
In the present case, assuming arguendo that complainant was subjected to
harassment based on sex as alleged, we find the agency took appropriate
measures to address the concerns raised by complainant. The Director
stated that complainant first complained to him about the vehicle
inspections in the latter part of 2004. He stated that he assigned
an officer to review the inspection logs of the past six months. He
states that the review showed that complainant was one of four or five
or five to seven other people who were stopped a bit more than average.
He stated that two were males and the rest were females. The Director
further stated that he did not know why some vehicles were inspected
more than others but he did not think the difference was indicative of
harassment. The Director gave complainant his cell phone number and told
her that she could call him whenever her vehicle was being inspected.
In March 2005, the Chief of Staff issued a memorandum to the security
guard supervisors requiring them to record the sex of the persons who
were stopped for vehicle inspections and to record when complainant was
stopped. The supervisors were also instructed that the inspections had to
conform to the inspection sequence that had been ordered for that day.
Complainant acknowledged that she only called the Director twice after
he had told her in March 2005 to call him when she was stopped for
inspection: on June 14, 2005, and June 22, 2005. On June 22, 2005, the
Director stated that he and the Lieutenant Colonel went to the gate to
talk to complainant and that he subsequently had the Lieutenant Colonel
investigate complainant's allegation that the stops were excessive.
The Lieutenant Colonel's report disclosed that complainant had been
stopped for inspection an average number of times in the preceding 90
days. The Lieutenant Colonel noted that after complainant complained
again about frequent vehicle inspections, he had the Personnel Security
Specialist review the daily inspection logs for the past six months.
That report revealed that complainant had been stopped more often than
some employees and less often than others. The Supervisory Security
Specialist stated that the security guards receive annual NO FEAR sexual
harassment training. We find that agency officials took sufficient
measures to address the complaints of harassment that were brought to
its attention. Accordingly, we find no basis to impute liability to
the agency. However, we note that to the extent complainant continues to
claim that she is still experiencing frequent vehicle inspections based
on her sex, the agency is reminded it would have a continuing duty to
explore such allegations to ensure it takes immediate and appropriate
corrective action.
The agency's final action finding no discrimination as to the claim
of sex discrimination and failure to state a claim as to the claim of
reprisal was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 21, 2010
__________________
Date
2
0120080252
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080252