01991145
08-15-2002
Carl E. Watkins, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Carl E. Watkins v. Department of Veterans Affairs
01991145
August 15, 2002
.
Carl E. Watkins,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01991145
Agency Nos. 98-0822, 98-0918
DECISION
Carl E. Watkins (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his 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. Complainant alleged that he
was discriminated against and harassed on the basis of sex (male) when:
(1) signs pejorative of males were displayed in the workplace;
(2) he was counseled in writing for an infraction on August 20, 1996,
while a female employee was not counseled for a similar infraction on
October 3, 1997;
he was treated disparately with respect to the use of the telephone;
he was treated disparately with respect to leave requests;
he was treated disparately with respect to lunch periods and breaks; and
he was treated disparately and harassed on January 8, 1998.<1>
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Pharmacy Technician (PT) in the Outpatient Pharmacy at the
agency's Decatur, Georgia Medical Center. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed formal complaints on November 25, 1997 and February 5, 1998.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or,
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, but subsequently withdrew that request.
The agency therefore issued a final decision.
In its FAD, the agency first addressed complainant's claim of sex-based
harassment and concluded that the actions at issue were not based on
sex. The agency also found that the conduct at issue was not sufficiently
severe or pervasive to constitute an objectively hostile work environment.
Finally, the agency noted that even if a hostile work environment based
on sex was created, the agency was not liable because it took immediate
corrective action as soon as complainant complained.
Turning to complainant's disparate treatment claim, the agency
acknowledged that complainant established a prima facie case, but
concluded that he failed to establish that management's articulation
was a pretext for discrimination. Specifically, the agency noted that
management explained that its actions were based on the need to service
customers, which includes a need to have employees come to work on
time, serve at the prescription window and keep the telephone free for
incoming calls.
On appeal, complainant raises no new arguments relating to the subject
complaint. He does, however, claim that the discrimination and harassment
he endured led him to accept disability retirement. The agency requests
that we affirm its FAD.
FINDINGS AND ANALYSIS
Turning first to complainant's claim that the agency's actions led him
to accept disability retirement and assuming that he intended by this
statement to allege that he was subjected to constructive discharge, we
find that the record establishes that complainant filed an application for
disability retirement on or about January 22, 1998, prior to the filing
of his February 5, 1998. In the February 1998 complaint he did not make
mention of the constructive discharge allegation, instead raising it for
the first time on appeal. Complainant is advised that if he wishes to
pursue, through the EEO process, the additional allegation raised for the
first time on appeal, he shall initiate contact with an EEO counselor
within fifteen days after he receives this decision. The Commission
advises the agency that if complainant seeks EEO counseling regarding the
new allegations within the above fifteen day period, the date complainant
filed the appeal statement in which he raised these allegations with
the agency shall be deemed to be the date of the initial EEO contact,
unless he previously contacted a counselor regarding these matters,
in which case the earlier date would serve as the EEO counselor contact
date. Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201
(January 16, 1998).
Disparate Treatment
Turning next to complainant's claims that he was subjected to disparate
treatment and applying the standards set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission finds, for the most
part, that complainant failed to establish that the agency's explanations
for its actions were a pretext for sex discrimination.
Complainant failed to establish a prima facie case with respect to Issues
3, 4 and 5. Complainant alleged that he was not given the same leeway as
his female co-workers regarding telephone usage, leave requests (including
using leave to cover for late arrivals to work) and breaks. The testimony
of complainant's co-workers and supervisors establishes that complainant
used the phone for personal calls more frequently than other employees.
Moreover, several female co-workers testified that they too were verbally
counseled on occasions for using the phone for personal reasons when
their services were needed. Similarly, the record establishes that all
employees supervised by S1 were subject to the same leave, lunch and break
rules. S1 testified that when she noticed an employee arriving to work
or returning from lunch late on a habitual basis, she counseled them.
Female co-workers of complainant testified that they, like complainant,
had to use leave when they arrived more than a few minutes late to work
and certain female co-workers noted that S1 verbally counseled them when
they were late too often. In sum, complainant failed to come forward
with any evidence that raises an inference of discrimination in regard to
Issues 3, 4 and 5. The agency's finding of no discrimination in regard
to Issues 3-5 is therefore AFFIRMED.
Turning to Issue 6, we find that complainant established a prima facie
case of sex discrimination, in that he was assigned to work the window,
one of a Pharmacy Technician's more stressful duties, more than female
co-workers. S1 acknowledged that one of complainant's female co-workers
(CW1) did not work the window as often as complainant. S1 explained
that she assigned employees to window duties on a rotating schedule,
but also considered their skill in the area. She noted that complainant
was very good at working with veterans, while she received numerous
complaints from veterans when CW1 was assigned to the window. Co-workers'
testimony establishes that certain female co-workers were also assigned
to this duty more than others and the general perception was that those
who were more skilled at the assignment were assigned more often.
In arguing that the agency's explanation was a pretext for discrimination,
complainant noted that S1 sent him a �threatening letter� after
he brought in a letter from his doctor requesting that he not be
assigned to the window and contended that this established that S1's
action was motivated by his sex. The record establishes, however,
that complainant was excused from window duty for four weeks based on
the doctor's request. Subsequently, S1 informed complainant that she
would begin assigning him to the window again, but noted that if felt
he was still not capable of the duty, he should bring in an updated
doctor's note. S1's action was not improper and does not establish
that she was motivated by complainant's sex in assigning him to work
the window. Complainant failed to establish by a preponderance of the
evidence that his sex motivated the agency's action, rather than S1's
belief that he and certain female co-workers were better at working the
window than other female co-workers. Accordingly, the agency's finding
of no discrimination in regard to Issue 6 is AFFIRMED.
Complainant also established a prima facie case of sex discrimination
in regard to Issue 2. Complainant was counseled in writing by his
second-line supervisor (S2) when he picked up more than six prescriptions
at one time, a violation of Pharmacy policy. The record establishes that
all female PTs engaged in the same behavior, but that only complainant
was counseled in writing.
S2 testified that she counseled complainant in writing after she observed
him picking up more than six prescriptions at once. She noted that this
was against Pharmacy policy and that complainant had already received
a verbal warning about this practice. She noted that her policy was to
issue a letter of counseling to any employee engaging in this practice
who had already been verbally counseled, but that she never observed
anyone else doing so.
We find that this explanation is not true and is a pretext for sex
discrimination. The letter of counseling received by complainant
indicates that he, like all PTs, received an electronic message (e-mail)
in February of 1996 and again in May of 1996, informing them that
the policy on filling prescriptions was to be followed. In August of
1996, all PTs were verbally informed that if they did not follow the
policy, they would receive instructions in writing. The letter makes
no mention of any other verbal counseling received by complainant, nor
does S2 provide any specifics relating to when she verbally counseled
complainant. We find, therefore, that the verbal counseling referred
to by S2 in justifying her actions consisted of the counseling that all
PTs received in February, May and August of 1996.
The record establishes, however, that S2 observed at least one of
complainant's female co-workers (CW2) violating this policy after she
issued the verbal warnings, but did not issue a letter of counseling.
CW2 noted that on one occasion S2 observed her picking up prescriptions
and asked if she had more than six. CW2 admitted that she did and S2
spoke to her about abiding by the policy, but did not issue her a letter
of counseling. Other female co-workers testified that the policy is
constantly violated in the presence of S2 and S1, but that no one other
than complainant has ever received a letter of counseling. We find,
therefore, that complainant has established by a preponderance of the
evidence that he was subjected to sex discrimination when he was issued
a letter of counseling on August 20, 1996. The agency's finding to the
contrary is REVERSED.
Harassment<2>
Complainant also claimed that he was subjected to sex-based harassment.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
See Wibstab v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985); see also Wild v. Department of Defense, EEOC Appeal
No. 01984101 (September 12, 2000), req. to recon. denied, EEOC Request
No. 05A10058 (March 16, 2001).
To establish a prima facie case of sex-based harassment a complainant
must show that: (1) he belongs to a statutorily protected group; (2) he
was subjected to unwelcome conduct related to his sex; (3) the harassment
complained of was based on sex; (4) the harassment had the purpose or
effect of unreasonably interfering with his work performance and/or
creating an intimidating, hostile or offensive work environment; and
(5) there is a basis for imputing liability to the agency. See McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999); Wild, supra.
In the case at hand, complainant established that S1 showed CW1 a
book or internet site which listed a number of pejorative sentiments
concerning the character and ability of men<3> and that CW1 subsequently
posted these sentiments on pieces of paper in her work environment.<4>
Complainant also established that he complained about these signs to
co-workers and to his third-line supervisor within days of their posting.
Furthermore, numerous witnesses, including S2, testified that S1 had
occasionally made negative comments about men in general. As such,
complainant has established elements 1, 2 and 3 of the prima facie
case. We find, however, that the conduct did not have the purpose or
effect of unreasonably interfering with complainant's work performance
and that it did not create a hostile or offensive work environment.
In order to establish that conduct unreasonably interfered with work
performance or created a hostile work environment, complainant must
establish that the harassment was severe or pervasive. See McCleod,
supra. Federal law does not prohibit simple teasing, offhand comments and
isolated incidents that are not extremely serious. See Faragher v. City
of Boca Raton, 524 U.S. 775 (1998). While the signs are unquestionably
inappropriate for the workplace, the record establishes that the signs
were only posted for a few days and that they were taken down immediately
when complainant expressed his displeasure with them. Even considering
the signs in combination with S1's occasional negative references towards
men in general, we find that they are not sufficiently severe or pervasive
to establish that complainant was subjected to harassment.
The Commission recognizes that a �mere utterance of an ethnic or racial
epithet which engenders offensive feelings in an employee would not
affect the conditions of employment to a sufficiently significant degree
to violate Title VII.� Meritor Savings Bank v. Vinson, 477 U.S. 57, 67
(1986). While Commission precedent holds that a limited number of highly
offensive slurs or comments may support a finding of discrimination,
these cases involve highly inflammatory comments which were directed
towards the complainants themselves. See, e.g., Yabuki v. Department of
the Army, EEOC Request No. 05920778 (June 4, 1993)(single incident of
verbal abuse and negative comment concerning Japanese people directed
towards complainant specifically sufficient to constitute race and
national origin discrimination); Brooks v. Department of the Navy,
EEOC Request No. 05950484 (June 25, 1996)(three racially derogatory
comments made directly to complainant over a two-month period, including
pointing to him and calling him a �n- - ger� and comparing a dead black
rat to complainant's relatives, made by an individual with a history of
making such statements, including frequent use of the word �n- - ger,�
was sufficient to state a claim); McAllister v. Department of Defense,
EEOC Request No. 05960416 (May 22, 1997)(a supervisor's disparaging and
racist comments to complainant, in conjunction with prior comments by
the supervisor demeaning to other protected classes, was sufficient to
justify an AJ's finding of discrimination).
The case in hand involves negative comments relating to the character of
men in general which were not directed towards complainant specifically
and did not involve any inflammatory language. In this situation,
we find that the comments were not sufficiently severe or pervasive
to create a hostile work environment. Even considering the comments
together with the isolated discriminatory letter of counseling issued by
S2, we find that complainant was not subjected to a severe or pervasive
hostile work environment.
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 FAD in regard
to Issue 1 and Issues 3-6. We find, however, that complainant was
subjected to discrimination on the basis of his sex when he was issued
a letter of counseling and we therefore REVERSE the FAD in regard to
Issue 2. The matter is REMANDED to the agency for further processing
in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall remove the letter of counseling from any and
all agency files, including complainant's official personnel file.
2. The agency shall post a notice, as provided below.
3. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) days after the agency's receipt of the
attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
POSTING ORDER (G0900)
The agency is ordered to post at its Decatur, Georgia facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
August 15, 2002
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at the Department of Veterans
Affairs Medical Center in Decatur, Georgia (facility).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have discriminated on the basis of sex when an
employee was issued a letter of counseling. The facility was ordered
to: (1) remove the letter of counseling from any and all agency files;
(2) post this notice; and (3) award complainant compensatory damages
and attorney's fees, if appropriate.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 Although the complaint filed on February 5, 1998 mentioned race
as a basis for discrimination, complainant subsequently clarified
that he was only alleging sex discrimination and sex-based harassment.
2 To the extent complainant intended to claim that he was subjected
to harassment based on all of his allegations taken together, we
have already determined that actions described in Issues 3-6 were
not motivated by complainant's sex, but rather by the legitimate
business needs of the agency. Accordingly, these issues will not be
considered part of complainant's sex-based harassment claim. However,
complainant alleged that Issue 1, in and of itself, created a hostile work
environment and that claim, as well as the action described in Issue 2,
will be considered.
3 It is undisputed that S1 brought the sentiments to CW1's attention,
although it is not clear in what form they first appeared.
4 The sayings posted on the signs including comments such as, �Giving a
man space is like giving a dog a computer: Chances are he will not use
it wisely� and �Don't accept rides from strange men, and remember all
men are strange as h-ll.�