01986279
03-17-2000
Beverly Burkett, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Beverly Burkett v. Department of Agriculture
01986279
March 17, 2000
Beverly Burkett, )
Complainant, )
) Appeal No. 01986279
v. ) Agency No. 941230
) Hearing No. 250-96-8255X
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the bases of race (Black) and sex (female) in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> Complainant alleges she was discriminated against when: (1)
on May 13, 1994, she was given a letter of reprimand (LOR); (2) from
May to October 1994, she was not promoted; and (3) in 1994, she was
not given a performance award. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was employed
as a GS-6 Program Assistant at the agency's Lincoln County Farm Service
Agency in Star City, Arkansas. Complainant's first-line supervisor was
the Lincoln County Executive Director (ED). Complainant stated that she
was the only Black employed at the agency. Complainant testified that the
ED presented her with an LOR, which threatened her with discharge if her
attitude did not improve within 30 days. Complainant further testified
that the ED believed her family problems were causing her difficulties
in the office. Complainant declared that she did not discuss her family
problems in the office as much as some other employees, and that her
attitude was not affected. She stated that two white co-workers were not
given letters of reprimand nor otherwise disciplined for problems similar
to what she has been accused. She further stated that in November 1993,
she discussed the possibility of an upgrade with the ED, and that he
informed her that he was working on it. However, complainant indicated
that the ED mandated that she take-on two additional programs, Disaster
and Reconstitution, in order for her qualify for a GS-7. Complainant
agreed to the assignment of the additional programs, however, she was
not promoted. Complainant testified that in May 1994, she again inquired
of the ED as to the promotion. She stated that he informed her that
she could not be promoted because of the agency freeze on hiring and
promotion. Complainant testified that she was eventually promoted to a
GS-7 on October 2, 1994. She further testified that she should have been
promoted earlier, but that the ED did not want to promote her because he
was afraid she would leave the agency. Complainant stated that another
Program Assistant, Comparison 1 (white female), was promoted to a GS-7
at approximately the same time she was, but that she was not assigned
any additional programs to qualify her for the GS-7 level. Complainant
further stated that, of the five Program Assistants in the Lincoln County
Office, she was the only one not to receive an award in 1993 and 1994.
She testified that her work was as good as anyone's, and that she put
in extra effort and overtime to help out. She further testified that
the ED had indicated to her that she needed to improve her attitude in
order to get an award. Complainant also noted that she had heard the
ED use disparaging remarks based upon race. While acknowledging that
these remarks were never directed at her, complainant stated that she
had overheard the ED specifically use the word "nigger" when conversing
with non-employees of her office. Complainant acknowledged that she
never communicated the ED's disparaging remarks to other members of
management at the agency.
The ED testified that he issued complainant the LOR, on May 13,
1994, because of her attitude. He further testified that complainant
constantly complained about family problems while at work. The ED stated
that complainant complained more than other employees in the office.
He further stated that the letter got results in that complainant's
attitude improved. The ED testified that he was not going to terminate
complainant, even though the letter he issued complainant stated that
he might do so if her attitude did not improve. Regarding promotions,
the ED testified that they are based on county workloads. While noting
that he processed her promotion at the very same time he issued her
the letter, he indicated that he had begun to initiate complainant's
promotion in November/December 1993. The ED testified that complainant
has been promoted faster than any of the other Program Assistants, who
have all worked for a longer time at the agency. Comparing complainant's
promotion record to that of the other Program Assistants, the ED testified
that Comparison 2 (white female) was employed twenty-nine years before
receiving a promotion to a GS-7; Comparison 3 (white female) was employed
ten years before receiving a promotion to a GS-7; Comparison 4 (white
female) was employed nine years before receiving a promotion to a GS-7;
Comparison 1 (white female) was employed eight years before receiving
a promotion to a GS-7; and complainant was employed seven years before
receiving a promotion to a GS-7. He further testified that Comparison 1
was an expert in her field; thus, she was eligible for promotion without
assignment of additional programs. While noting that he had assigned
complainant two additional programs so that she could qualify for the
GS-7 level, the ED stated that complainant's promotion was delayed due
to an agency wide freeze on personnel actions. He further stated that
complainant was upset when her promotion was delayed and blamed him.
Concerning awards, the ED testified that complainant did not receive an
award in 1993/1994 because her promotion to a GS-7 was being processed
and because her performance did not warrant one. He indicated that the
agency handbook restricts granting a quality step increase to an employee
who is about to be promoted.<2> The ED stated that if he used racially
derogatory words it was unintentional.
The Chief Administrative Officer testified as to the agency's promotion
procedures in effect during the 1993-1994 time period. He stated that
it was not unusual that complainant was assigned two extra programs
to enable her to be eligible for the GS-7 upgrade, because it was
necessary that an employee be assigned at least two programs that met
the adjudicated work day criteria. The Chief stated that Comparison 1
was not assigned any additional programs prior to her promotion because
she already had a sufficient number of programs and was recognized as
an expert in a program. He further stated that complainant's promotion
was processed when the freeze was lifted in August 1994. While noting
that both complainant and Comparison 1 were both promoted in October
1994, the Chief stated that Comparison 1 was recommended for promotion
by the ED after the freeze was lifted. The Chief declared that the LOR
issued to complainant was neither a termination letter nor an official LOR
because it was not cleared through the personnel office prior to issuance.
He further declared that this letter was not maintained in complainant's
personnel records.
Comparison 2 testified that there really were not any racial slurs in
the office. She stated, however, that the ED would sometimes use the
"N word." She further stated that the ED has called Black people "that"
all of his life, and that "he didn't mean to hurt anyone."
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on December 28,
1994. By letter dated February 1, 1995, complainant was advised that
her allegation had been accepted for investigation. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
After conducting a hearing and reviewing the evidence of record, the
AJ issued a recommended decision (RD), dated May 2, 1997, finding no
discrimination. The AJ concluded that complainant failed to establish
a prima facie case of race or sex discrimination because she failed to
demonstrate that she has suffered an adverse action with respect to the
LOR, and because she has failed to show a causal connection between
the other actions complained of and her race and sex. The AJ then
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that the ED stated that, complainant
required two additional programs in order to be upgraded to a GS-7 and,
but for the agency wide freeze on personnel actions, complainant would
have been promoted sooner. The AJ further concluded that complainant
did not receive an award in 1993/1994 because her promotion to a GS-7
was being processed, and that complainant did not present evidence
that her performance warranted one. The AJ also concluded that because
the LOR issued to complainant was an unofficial letter unaccompanied
by concrete agency action, complainant is not aggrieved. In its FAD,
the agency adopted the AJ's RD finding no discrimination.
ANALYSIS
LOR
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
22, 1994).
This letter was not an official LOR because it was not cleared through the
agency's personnel office prior to its issuance. Furthermore, this letter
was not maintained in complainant's personnel records. Complainant has
not shown that she has suffered a present harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
Therefore, with respect to this claim, complainant is not aggrieved.
PROMOTION and AWARDS
Complainant can establish a prima facie case of race or sex discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, to establish a prima facie case
of discrimination based on a Title VII disparate treatment claim,
complainant must show that she belongs to a statutorily protected
class and that she was accorded treatment different from that accorded
persons otherwise similarly situated who are not members of the class.
Comer v. Federal Deposit Insurance Corporation, Request No. 05940649
(May 31, 1996)(citing Potter v. Goodwill Industries of Cleveland, 518
F.2d 864, 865 (6th Cir. 1975)). In order for two or more employees to be
considered similarly situated for the purpose of creating an inference
of disparate treatment, complainant must show that all of the relevant
aspects of her employment situation are nearly identical to those of
the comparative employees whom she alleges were treated differently.
Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
Here the record shows that complainant is a member of two protected group:
Black and female. However the Commission finds that complainant has not
established that other employees not of her protected group were treated
differently under similar circumstances. With respect to promotion,
complainant cited only Comparison 1 for examination. The record
clearly indicates that, although there were five Program Assistants
(including complainant) in the office at that time, complainant has been
promoted faster than any of the other Program Assistants, who have all
worked for a longer time at the agency. While complainant agreed to
the assignment of the additional programs in order to be promoted,
Comparison 1 was not assigned any additional programs prior to her
promotion because she already had a sufficient number of programs and
was recognized as an expert in a program. Complainant's promotion was
processed when the freeze was lifted in August of 1994. With respect
to awards, the Commission finds that complainant did not receive an
award in 1993/1994 because her promotion to a GS-7 was being processed.
The Commission also finds that complainant did not present evidence that
her performance warranted an award. Also, there are no male Program
Assistants employed at the Lincoln County Office. Thus, complainant's
claim of sex discrimination lacks merit here. The Commission finds that
complainant has not shown that other employees not of her protected
groups received better treatment than she. In the absence of any other
evidence from which to infer a discriminatory motive, the Commission
finds that complainant has not established a prima facie case of race
or sex discrimination.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected groups.<3> As a
result, we discern no basis to disturb the AJ's RD. Therefore, after a
careful review of the record, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
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.
2The record indicates that the agency handbook prohibited the issuance
of awards to employees who are to be promoted within sixty days, or who
have received a promotion within the preceding fifty-two weeks from the
date of recommendation.
3While complainant's claims were not based upon a hostile work environment
involving racially disparaging language, the Commission finds that
the agency should be more cognizant of its officials who use, even
occasionally, racial epithets. We remind the agency that such conduct in
the workplace is prohibited, and that unless corrected immediately after
due notice, it will be liable for its agents' discriminatory actions.