01a03544
11-09-1999
Yu C. Stough, Complainant, v. William S. Cohen, Secretary, Department of Defense, Army & Air Force Exchange, Agency.
Yu C. Stough v. Department of Defense - Army & Air Force Exchange
01A03544
08-10-00
.
Yu C. Stough,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
Army & Air Force Exchange,
Agency.
Appeal No.01A03544
Agency No. 99-113
DECISION
Pursuant to 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29
C.F.R. � 1614.405), the Commission accepts the complainant's appeal
from the agency's final decision in the above-entitled matter.<1>
Complainant filed a complaint in which she claimed that the agency
subjected her to a hostile work environment between April 19 and June 7,
1999, because of her race (Asian), national origin (Korean), sex, and
mental disability (anxiety and depression). Her claim arose in connection
with the following incidents: criticism by her supervisor for the way she
paged employees on April 30 and May 6, 1999; being scheduled to work the
employee register beginning April 24, 1999, but only given five minutes
of training on the employee register; not being paid for work done on
May 6, 1999; having her schedule changed for April 29, 1999, with only
one day's notice; being scheduled for closing shift only, effective
May 6, 1999; and being called at home on May 11, 1999, by the operations
manager. She also claimed that she was subjected to reprisal on June 7,
1999, in connection with comments made by the general manager during a
discussion of her step 1 grievance. The agency investigated the matter and
notified complainant of her right to request either a hearing or a final
agency decision without a hearing. Complainant opted for the latter,
and the agency ultimately issued a final decision of no discrimination,
from which complainant now appeals.<2> For the purposes of this analysis,
we will assume that the complainant is an individual with a disability.
See 29 C.F.R. � 1630.2(g).
We address complainant's harassment claim first. In order to establish
a claim of discriminatory harassment, complainant must show that she
was subjected to conduct that had the purpose or effect of unreasonably
interfering with her work performance or creating an intimidating,
hostile, or offensive work environment because of her race, national
origin, or disability. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982). In this case, complainant failed to show that those who took
the actions she complained of were motivated by considerations of her
race, national origin, or disability. Regarding the paging incident,
the supervisor stated that he criticized everyone for the manner
in which they paged employees, not just complainant. Several other
witnesses corroborated his statement. As to the incident regarding
training and scheduling, several of complainant's co-workers who were
not of her protected groups also reported being given minimal training
and having their schedules changed on a moment's notice. Regarding the
incident involving her not being paid, complainant admitted that she
forgot to sign out on the day in question, and that the oversight had
been corrected. As to having to work the night shift, another employee
not of complainant's protected racial group stated that she was also
given a nights-only work schedule. Finally, with respect to being called
at home, the operations manager called complainant at home because she
had applied for a permanent position, and the manager needed to know
if she was still interested in being interviewed for that position.
Complainant has not presented any evidence that undermines or contradicts
the affidavits given by the agency's witnesses regarding the various
incidents comprising her claim of hostile work environment. Accordingly,
we find that complainant has not established that she had been subjected
to discriminatory harassment. We now address her reprisal claim.
To prevail on a claim of reprisal, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima
facie of reprisal by showing that she engaged in protected EEO activity,
that the agency was aware of that activity, and that she was subjected
to an adverse action at such a time or in such a manner as to support a
causal connection between the two events. Frye v. Department of Labor,
EEOC Request No. 05940764 (December 15, 1994). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
The record in this case clearly establishes that the comments referred to
by complainant were made in connection with a union grievance unrelated
to any EEO activity. Consequently, we find that complainant failed to
establish that she was subjected to unlawful reprisal.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the record evidence does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
Date
.1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.
2Although the agency identified the issue as one of hostile work
environment, it analyzed this case as a claim of disparate treatment in
connection with the terms and conditions of complainant's employment,
rather than a harassment claim.