01986339_01993436
05-30-2001
Melissa R. Brookey v. Department of Agriculture 01986339 & 01993436 05-30-01 .Melissa R. Brookey, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Melissa R. Brookey v. Department of Agriculture
01986339 & 01993436
05-30-01
.Melissa R. Brookey,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal Nos. 01986339 & 01993436
Agency Nos. 950526 & 960429
DECISION
INTRODUCTION
On August 19, 1998, and March 22, 1999, Melissa R. Brookey (hereinafter
referred to as complainant) initiated timely appeals to the Equal
Employment Opportunity Commission (Commission) with regard to her
complaints of discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The appeals
are accepted by this Commission in accordance with 29 C.F.R. � 1614.405,
and consolidated herein. Based upon a review of the record, and for the
reasons stated herein, it is the decision of the Commission to AFFIRM
the final agency actions.
ISSUES PRESENTED
The issues on appeal are whether complainant proved, by a preponderance
of the evidence, that she was discriminated against on the basis of
her sex (female), and in reprisal for prior EEO activity under Title
VII when 1. she was investigated by Law Enforcement and Investigations
(LEI) Officers for storing government property at her home, issued a
letter of direction and notification of AWOL on March 21, 1995, and
harassed by three male employees; and 2. she received a letter dated
February 16, 1996, advising her that her Quarters Assignment Agreement
had been terminated.
BACKGROUND
Complainant was hired by the agency as a Fire Prevention Technician in
1981. Complainant filed formal EEO complaints in May 1995 and April 1996,
in which she raised the above-referenced issues. The agency accepted
complainant's complaints for processing, and conducted investigations with
regard to the matters in question. The agency then provided complainant
with a copy of the investigative reports, and advised complainant of
her right to request either final agency decisions or hearings before an
Administrative Judge. Receiving no response from complainant, the agency
issued final decisions on July 17, 1998, and January 7, 1999, finding
that complainant had not been subjected to discrimination as alleged.
It is these decisions from which complainant now appeals.
Appeal No. 01986339
According to the record, the agency received a complaint indicating that
complainant had stolen government property in 1994. The Law Enforcement
Officer assigned to the case stated that he took the individual's
statement, gathered evidence, and prepared a report regarding the
matter. He noted that complainant gave permission for her residence
to be searched. The Officer denied participating in any surveillance
of complainant or her home. He stated that he served complainant with
documents and an arrest warrant at the request of the U.S. Attorney.
In March 1995, complainant was off of work for a period of time.
Complainant asserted that she was told to use all of the leave she needed
to deal with the stress of her work environment. Management arranged
for a detail assignment for complainant, but she did not report for work
on March 15, 1995, the day the assignment was to begin. Complainant was
charged with AWOL for the period in question, and was issued a letter
of notification dated March 21, 1995. Complainant later submitted
a documented leave request, and was granted sick leave through April
18, 1995.
Complainant's supervisor (Supervisor A) and the Deputy Forest Supervisor
stated that complainant first reported specific incidents of harassment
in March 1995, at which time the agency conducted an investigation of
the matter. They noted that, prior to that time, they received only
general allegations of a hostile environment without names or details.
Supervisor A stated that complainant was removed from the environment
and detailed to another area. The Deputy Supervisor stated that, prior
to that time, complainant did not raise any objections to the detail
assignment. Supervisor 2 noted that complainant had been advised of the
conditions for extended leave and the procedures for requesting such.
Nevertheless, complainant did not report for the detail assignment after
indicating that she would do so.
Complainant stated that she was subjected to constant harassment by
various male employees beginning in 1989. According to complainant,
the employees refused to provide her with the equipment she needed
and reported minor incidents to her supervisor. Complainant stated
that although she received �Fully Successful� performance ratings, her
supervisor repeatedly criticized her for having a negative attitude,
being uncooperative, and not performing assigned duties. Complainant
noted that her supervisor also denied her opportunities for �off fire�
assignments, training, and a transfer. Complainant indicated that, in
October 1990, she reported the harassment to the Federal Women's Program
Manager, who informed the District Ranger of the matter. Nevertheless,
complainant stated that the harassment continued, with the named employees
vandalizing her vehicle and reporting that she was cheating on her
time sheets, and her supervisor requiring her to check in with him on a
daily basis. Complainant stated that one employee used obscene language
on two occasions. Complainant stated that she reported the harassment to
various other management officials, but that, again, no action was taken.
Complainant asserted that the LEI investigation was part of the continuing
harassment, and that the individual who made the allegations, a friend of
complainant's, did so because she was angry with complainant. Complainant
contended that the Law Enforcement Officers stalked and harassed her.
The co-workers named by complaint denied engaging in any harassing
activity or vandalizing complainant's vehicle. One individual
acknowledged monitoring complainant's activities, stating that his
supervisor asked him to do so because of reports that complainant
was sleeping and reading in her office. One of the individuals noted
that complainant got along with her co-workers when she first came to
the agency, but that her performance and attitude changed over time.
Several of the individuals indicated that there were concerns that
complainant did not work as hard as other employees, took more frequent
breaks, complained about working in the District, and isolated herself
from her co-workers. One individual acknowledged directing an obscenity
at complainant on one occasion when he felt she was not doing her work.
Complainant's former supervisor (Supervisor B) noted that when she first
came to the agency, complainant was a good employee, but that, over
time, she developed a negative attitude and her performance declined.
He noted that complainant was able to improve her performance for
periods of time when he would discuss the issue with her, but that her
performance would later diminish. Supervisor B stated that complainant
was given at least two Crew Boss assignments, but did not perform at a
level to become qualified for the position.
The Hispanic Program Manager stated that complainant discussed problems
she was having with Supervisor B beginning in 1993, but did not indicate
that she was being subjected to discrimination. He stated that when he
was later asked to supervise complainant on a project, her performance
was at a minimal level. He indicated that he never observed any employees
harass complainant or subject her to a hostile environment.
One female employee indicated that she believed there was a hostile
environment in the District. The Women's Program Manager stated that
complainant reported harassment to her in April 1992, and that she
advised management thereof on numerous occasions. She noted that she
was also subjected to harassment.
It is noted that the agency underwent a reorganization and downsizing
in 1993. Several areas were consolidated, and positions eliminated.
The record contains testimony indicating that there was a lack of
direction and leadership in the agency during this time. Further,
morale was described as being low. The record also shows that the named
co-workers engaged in questionable behavior, such as participating in food
and paint fights, throwing objects, and using particular obscenities,
which was directed at both male and female employees. According to the
record, 43 percent of the employees in the Region are female. It is
unclear whether there were other female employees in complainant's
District during the period at issue.
Appeal No. 01993436
According to the record, complainant was terminated effective February
16, 1996, for being AWOL and for falsifying a leave request.<1> Prior
to that time, complainant had executed a Quarters Assignment Agreement
(Agreement) for the use of a trailer pad at the Milford Administrative
Site. Complainant received a letter dated February 16, 1996, advising
her that the agreement had been terminated, and that she had 14 days in
which to remove her trailer. By letter dated March 7, 1996, complainant
acknowledged that she was delinquent in removing her trailer. Complainant
indicated that she expected to sell the trailer in seven to ten days.
The agency subsequently notified complainant, by letter dated March 14,
1996, that it would impound the trailer if it was not removed by March 22.
On March 26, 1996, a notice was placed in the local newspaper advising
complainant of the agency's intent to impound the trailer. Complainant
then submitted a copy of a bill of sale for the trailer to the District
Ranger on April 3, 1996. Complainant also submitted a note dated April
9, 1996, from a company stating that it had received a deposit for the
removal of the trailer. The trailer was removed on April 22, 1996.
Complainant asserted that the placement of the notice in the newspaper
constituted continuing harassment. Complainant stated that she advised
the Acting District Ranger of her plans to remove the trailer on the
date she was terminated. Complainant indicated that it was not possible
to comply with the deadline in the initial letter due to the weather
conditions.
Supervisor A stated that the Agreement provided for complainant to
maintain her trailer on government property while she was employed by
the agency. Thus, upon complainant's termination, Supervisor A indicated
that he was obligated to advise complainant of her duty to remove
the trailer. Supervisor A stated that complainant never communicated
with him to indicate that she was making an effort to comply with the
agency's request. Thus, he stated that he passed the matter on to a
Law Enforcement Officer, who placed the notice in the newspaper.
ANALYSIS AND FINDINGS
Appeal No. 01986339
With regard to the LEI investigation and March 1995 letter of direction
and notification of AWOL, the issues concern whether the agency subjected
complainant to disparate treatment on the bases of her sex and prior EEO
activity. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides
an analytical framework for proving employment discrimination in cases in
which disparate treatment is alleged. First, complainant must establish
a prima facie case by presenting enough evidence to raise an inference
of discrimination. McDonnell Douglas, supra, at 802. The agency
may rebut complainant's prima facie case by articulating legitimate,
nondiscriminatory reasons for its action, and if the agency does so,
complainant must show, by a preponderance of the evidence, that the
agency's reasons are a pretext for discrimination. Id. The Commission
notes that the McDonnell Douglas analysis need not be adhered to in all
cases. In appropriate circumstances, when the agency has established
legitimate, nondiscriminatory reasons for its employment decision, the
trier of fact may dispense with the prima facie inquiry and proceed to
the ultimate stage of the analysis, that is, whether the complainant
has proven by preponderant evidence that the agency's explanations were
a pretext for actions motivated by prohibited discriminatory animus.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983).
A review of the record reveals that the agency articulated a legitimate,
nondiscriminatory reason for the actions at issue, specifically, that
it received a report that complainant had stolen government property,
and complainant failed to report for the detail assignment or submit
an appropriate leave slip. Complainant acknowledged that a friend of
hers did make the allegations of theft. Further, with regard to the AWOL
charges, complainant was granted sick leave after submitting a documented
request. Complainant failed to show that the agency's stated reasons were
a pretext for prohibited discrimination, or that the actions resulted from
any discriminatory animus on the part of the named management officials.
Accordingly, the Commission finds that complainant was not subjected to
discrimination with regard to the LEI investigation or March 1995 letter.
Complainant also raised an issue of hostile environment harassment.
With regard to the merits of complainant's claim of harassment, it is
well settled that sexual harassment in the workplace constitutes an
actionable form of sex discrimination under Title VII. Meritor Savings
Bank v. Vinson, 477 U.S. 57 (1986). To establish a claim of sexual
harassment, complainant must show that: 1. she belongs to a statutorily
protected class; 2. she was subjected to unwelcome conduct related to her
gender, including sexual advances, requests for favors, or other verbal
or physical conduct of a sexual nature; 3. the harassment complained
of was based on sex;<2> 4. the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive working environment; and 5. there
is a basis for imputing liability to the employer. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). 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). Finally, harassment of an
employee based upon the employee's race, color, sex, national origin, age,
disability, or religion is unlawful, if it is sufficiently patterned or
pervasive. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
Based upon a review of the record, and assuming the veracity of
complainant's allegations, we find the actions of the named co-workers
sufficiently severe and pervasive to meet the above criteria. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale
v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Nevertheless,
there is no evidence that the conduct was based upon complainant's
gender or prior EEO activity. As stated, the named co-workers engaged
in various inappropriate conduct which was directed at other employees
regardless of their gender or protected activity. Further, the Assistant
Fire Management Officer stated that the named co-workers monitored each
other's behavior and reported incidents to management. The Commission
has previously held that a complainant fails to establish a prima facie
case of sexual harassment when the challenged conduct is not related
to a complainant's gender. Frye v. Department of Labor, EEOC Request
No. 05940766 (January 23, 1995). Thus, we find that complainant has
failed to show that she was subjected to harassment as alleged.
Appeal No. 01993436
The record reveals that the Agreement was to remain in effect until
the expiration of complainant's employment at the particular location.
Thus, Supervisor A stated that he was obligated to advise complainant
of her duty to remove her trailer upon her termination. Supervisor A
stated that he passed the matter on to a Law Enforcement Officer, who
placed the notice in the newspaper, because he received no indication
from complainant that she was taking reasonable steps to comply with the
agency's request. Thus, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions.
Complainant indicated that it was not possible to comply with the time
frames set forth in the agency's letters. Nevertheless, complainant did
not respond to the agency's March 14 letter or provide any information
regarding her efforts to comply until after the notice was placed in the
newspaper. Further, the agency never attempted to impound complainant's
trailer, and provided her with additional time in which to move it.
Although complainant contended that the action constituted harassment,
the record does not support such a finding. Therefore, we find that
complainant was not subjected to discrimination with regard to the matter
at issue.
CONCLUSION
Accordingly, based upon a review of the record herein and for the
foregoing reasons, it is the decision of the Commission to AFFIRM the
final agency decisions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
______05-30-01____________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1Complainant did not raise allegations of discrimination with regard to
her termination in either of the complaints herein.
2In addition to considering conduct that is explicitly sexual in nature,
the Commission will consider other conduct or comments which are related
to the complainant's gender.