05a00061
03-16-2000
Tammy R. Toye, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Tammy R. Toye v. Department of the Army
05A00061
March 16, 2000
Tammy R. Toye, )
Complainant, ) Request No. 05A00061
) Appeal No. 01980114
v. ) Agency No. COL95AR378E;
) COL95AR379E
) Hearing No. 120-96-5133X;
) 120-96-5134X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On October 14, 1999, Tammy R. Toye (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Tammy R. Toye v. Department of the Army,
EEOC Appeal No. 01980114 (October 5, 1999).<1> EEOC Regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)). For the reasons set
forth herein, complainant's request is denied. However, the Commission
exercises its discretion and reconsiders the previous decision on its
own motion for the reasons discussed herein.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's final decision, which adopted the Administrative Judge's
recommended decision finding no discrimination or retaliation.
BACKGROUND
The record reflects that complainant was initially hired by the Department
of the Army as a community planner at the GS-7 level. Thereafter,
complainant was promoted to the GS-11 level as a community planner. In
February 1995, complainant initiated timely contact with an EEO Counselor
claiming that she had been unlawfully discriminated against based on her
race, religion, color and gender. Unable to resolve the matter
informally, complainant filed a formal complaint in March 1995. Therein,
complainant claimed that she was unlawfully discriminated against when:
she did not receive the same opportunities for training as her white
co-workers did; she did not receive the same type of work assignments as
her white co-workers; she was not promoted as her white co-workers were;
and she was subjected to a hostile work environment because her white
co-workers would make racial epithets and hit her cubical. Thereafter, in
March complainant again sought EEO counseling claiming that she was being
retaliated against and subjected to continuous harassment. Unable to
informally resolve this matter, complainant again filed a formal complaint
in March 1995. Both complaints were subsequently consolidated for processing
and investigation.
Having received the right to request a final agency decision or a
hearing before an administrative law judge, complainant requested to
have a hearing. During the hearing, direct testimony was provided
by complainant's witness that he heard racial epithets being uttered
about complainant and that he witnessed her cubical being struck by her
co-workers. Supplementing the hearing transcript, the investigative file
reflects that two other co-workers, who did not testify at the hearing,
witnessed complainant's cubical being struck by other co-workers.
Moreover, during the hearing, the agency admitted, that even though it
is unsubstantiated, it is conceivable that racial epithets were in
fact uttered. The agency further admitted that complainant's cubical
was being struck by her co-workers but, insisted that any contact with
the cubical was accidental. Furthermore, complainant testified that she
was not being allotted the same opportunities for training as her white
coworkers were. However, the agency provided that with regards to the
issue of training, it was established that training is based upon ones job
related duties and experience. With respect to assignments, complainant
testified that she was not made a project manager and she was not assigned
developmental projects. On the other hand, the record goes unrebutted,
that complainant was in fact assigned as a study manager because community
planners could not be assigned project manager positions. And it is also
unrebutted that she failed to apply for any developmental projects,
which was required before one could be assigned. As per the issue of
promotions, testimony was provided that indicated that similar situated
employees were promoted, but it was through a competitive process that
required applying, which complainant did not do. During the hearing,
the administrative judge also allowed testimony to be developed with
regards to the issuance of monetary awards. With respect to this issue,
complainant claims that she has not received the same number and amounts
of awards as her white co-workers. However, the agency testimony that
awards are primarily contingent upon ones length of employment and
performance with the agency remained unrebutted by complainant. In
addition, testimony was provided by the agency with respect to the issue
of retaliation. With regards to this issue, complainant claims that she
was retaliated against when she was called in to her supervisors office to
discuss an alleged remark that she had made to a fellow employee. In
response, the agency offered that complainant was not being retaliated
against for her prior complaints when they discussed with her the statement
which she allegedly made to her co-worker. The agency further stated that
the discussion they had with her regarding the alleged statement was not
disciplinary in nature and was not recorded in any of her files by the
agency.
In his recommended decision, the administrative judge, relying on the
hearing transcript and investigative file, found that complainant was
not discriminated or retaliated against. Specifically, he found that
complainant failed to establish a prima facie case of discrimination
with regards to training, assignments, awards, retaliation and
promotions. Furthermore, the recommended decision found that if any acts
were taken against the complainant, they did not individually rise to
a level of severity to warrant a finding of a hostile work environment.
On appeal, the previous decision affirmed the agency's decision to adopt
the administrative judges recommended decision finding no discrimination
or retaliation. In her request for reconsideration, complainant fails
to demonstrate that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or that the previous decision
will have a substantial impact on the policies, practices or operations
of the agency.
The agency did not submit any statement in response to complainant's
request for reconsideration.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.405(b) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Complainant's allegations of discrimination based on race, color,
religion, gender and reprisal constitute claims of disparate
treatment. Allegations of disparate treatment are analyzed under the
tripartite scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-804 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed, 545 F.2d 222
(1st Cir. 1976). Although the initial inquiry in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s(he) has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
were merely a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
Therefore, in the present case, the Commission will bypass the prima facie
stage of the analysis and focus on whether the agency's explanations for
its actions were a pretext for discrimination based on race, color,
religion, gender and reprisal.
TRAINING
With regards to the issue of training, it is the decision of the
Commission to bypass the prima facie stage of the analysis and focus on
whether the agency's explanations for it actions were in fact pretext for
discrimination. Complainant has argued that she has not been afforded the
same opportunities for training as her white co-workers. In response, the
agency has articulated that training is contingent upon ones experience
and job related duties. In this case, complainant has failed to establish
that employees outside her protected class in fact received training that
was not related to ones job or experience. Therefore, the complainant
has failed to rebut the agency's legitimate nondiscriminatory reason.
Accordingly, it is the decision of the Commission to AFFIRM the previous
decision finding no discrimination with regards to the issue of training.
PROMOTIONS
With regards to the issue of promotions, it is the decision of the
Commission to bypass the prima facie stage of the analysis and focus on
whether the agency's explanation for it actions were in fact pretext for
discrimination. Complainant has argued that she has not been promoted to
the GS-12 level while similar situated white employees have been promoted
to that level. The agency responded to this accusation by articulating
that employees who are community planners can only be promoted to the
GS-12 level by a competitive promotion, which requires one to apply.
In this case, complainant has failed to establish that she even applied
for the position let alone that other community planners did not have
to competitively apply for the GS-12 position. Therefore, complainant
has failed to rebut the agency's legitimate nondiscriminatory reason.
Accordingly, it is the decision of the Commission AFFIRM the previous
decision finding no discrimination with regards to the issue of
promotions.
HIRING
With regards to hiring, it is the decision of the Commission to bypass
the prima facie stage of the analysis and focus on whether the agency's
explanation for it actions were in fact pretext for discrimination.
Complainant argues that she should have been hired at a level higher
than GS-7 like her white co-worker Ms. Griff, which she claims to have
been hied at a GS-9 level. Complainant's claim fails because the record
goes unrebutted that Ms. Griff was hied at a GS-7 level. Therefore,
it is the decision of the Commission to AFFIRM the previous decision
finding no discrimination with respect to hiring.
AWARDS
With regards to the issue of awards, it is the decision of the Commission
to bypass the prima facie stage of the analysis and instead focus on
whether or not the agency's explanation was in fact pretext for
discrimination. Complainant argues that she was discriminated against
when she did not receive as many and as large of awards as her white
co-workers. The agency responded by asserting that wards were distributed
based on performance and one length of employment with the agency.
Complainant, has failed to present evidence which would establish that this
explanation is in fact a pretext for discrimination. In fact, complainant
has failed to supply any evidence to demonstrate that similar situated
employees outside her protected class with the same length in service and
performance ratings received larger and more awards than complainant.
Therefore, complainant has failed to rebut the agency's legitimate
nondiscriminatory reason for its actions. Accordingly, it is the
decision of the Commission to AFFIRM the previous decision finding no
discrimination with respect to the issue of awards.
ASSIGNMENTS
With respect tot he issue of assignments, it is the decision of the
Commission to bypass the prima facie stage of the analysis and instead
focus on whether or not the agency's explanation was in fact pretext
for discrimination. Complainant has argued that she was discriminated
against when she was not made a project manager and when she did not
receive developmental projects. The record reflects that the agency
has explained that the complainant's division does not appoint project
managers, but rather the agency appoints study or program mangers.
In addition, the agency has asserted that developmental projects must
be applied for and complainant did not apply for any such projects.
The record further reflects that complainant was in fact appointed as
a study manager but it does not reflect that complainant did respond to
requests for developmental projects. Furthermore, complainant has failed
to demonstrate that employees outside of her protected group received
developmental projects without having to apply for such or that they
received more study/program manager positions than she. Therefore,
the complainant has failed to rebut the agency's legitimate
nondiscriminatory reason. Accordingly, it is the decision of the
Commission to AFFIRM the previous decision finding no discrimination
with respect to the issue of assignments.
RETALIATION
To establish a prima facie case of reprisal discrimination, appellant
must show that (1) she engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) she was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link between the protected activity and adverse action. Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F. 2d 222 (1st Cir. 1976) ; Manoharan v.
Columbia University College of Physicians and Surgeons, 842 F.2d 590, 593
(2d Cir. 1988). The causal connection may be shown by evidence that the
adverse action followed the protected activity within such a period of
time and in such a manner that a reprisal motive is inferred. Grant v.
Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
In the present case, complainant has satisfied the first two prongs of
the above stated test for finding retaliation. However, complainant
has not shown that she was in fact subjected to an adverse action.
Here, complainant claims that when she was called into her supervisors
office to discuss an alleged remark made by her, she was subjected to
an adverse action. The Commission, on the other hand, finds that this
was merely an official discussion, defining that the alleged remark,
if in fact made, was inappropriate in the work place. This Commission
has consistently held that official discussions alone do not render an
employee aggrieved. See Miranda v. United States Postal Service, EEOC
Request No. 05920308 (June 11, 1992); Devine v. United States Postal
Service, EEOC Request Nos. 05910268, 05910269 and 05910270 (April
4, 1991). In the present case, we find no claim by complainant that
the discussion was recorded in any personnel or supervisory files, nor
that it can be used as a basis for any subsequent disciplinary action.
See Divine, supra. The Commission rules, that the official discussion,
without further action, does not constitute an adverse action. Therefore,
the complainant has failed to satisfy the third prong of the above test
thus failing to establish a prima facie case of retaliation. Accordingly,
the Commission AFFIRMS the previous decision finding that the complainant
failed to establish a prima facie case of retaliation.
HOSTILE WORK ENVIRONMENT
In reviewing complainant's claim of a hostile work environment, the
Commission will apply a substantial evidence standard in reviewing the
administrative judges factual findings pursuant to 64 Fed. Reg. 37,644,
37,657 (1999) (to be codified at and hereinafter referred to as 29
C.F.R. � 1614.109). In this case, the Administrative judge has found
that both complainant and her witness did not provide credible testimony.
To support this ruling, the Administrative Judge cited that since
complainant incorrectly testified as to what grade Ms. Griff was hired at
and to the amount of training her coworkers received he did not find her
testimony with respect to the claim of hostile work environment to be
credible. The AJ further found that since complainant's witness no longer
worked for the agency, he thus had no stake in the matter, and therefore
his testimony had to be given careful consideration. The record reflects
that his testimony concerning the issues of a hostile work environment were
not considered or given credence.
To determining whether or not a complainant was subjected to a hostile or
abusive work environment, the trier of fact must consider the totality of
the instances of harassment togther rather than piecemeal to determine if
the acts considered together, are sever and pervasive enough to alter
the conditions of the workplace. See Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993)
Consistent with the Commission's policy and practice of determining
whether a hostile or abusive work environment existed, the Commission
has repeatedly found that claims of a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996); Banks v. Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly
found that remarks or comments unaccompanied by a concrete agency action
usually are not a direct and personal deprivation sufficient to render
an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No.05940695
(February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
In the present case, the Administrative Judge reviewed several instances
of alleged harassment in determining if a hostile work environment
existed. They were as follows: utterance of racial epithets; striking
of complainant's cubical; tampering with her computer; a comment about
complainant's lunch; a comment about her mental well being; not being
hired at a higher level; and not receiving the same amount of training as
her coworkers. Within his decision, the AJ made the factual finding that
the testimony provided for concerning the claims of racial epithets,
intentional and frequent striking of complainant's cubical, not being
hired at a higher level and training was not credible. Pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at and hereinafter
referred to as 29 C.F.R. � 1614.405(a)), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as " such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion". Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding that
discriminatory intent did or did not exist is a factual finding. See
Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). Here, the record
does not present evidence which would demonstrate that the factual findings
of the Administrative Judge were erroneous.
Notwithstanding the above, the AJ erred in performing the hostile
work environment analysis with respect to the remaining claims.
In his decision, he looked at each claim in a piecemeal fashion and
determined that alone, it was not severe and pervasive enough to alter
the conditions of the work place. Properly, he should have reviewed
the claims collectively and determined if together, they were severe
and pervasive enough to alter the conditions of the work place. The
Commission finds that even when the remaining claims are viewed together,
they do not rise to a level that is severe and pervasive enough to alter
the conditions of the workplace. Therefore, the Commission AFFIRMS the
Administrative Judge's and the previous decision finding that no hostile
work environment existed.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds complainant's
request does not meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny complainant's request. However,
as discussed herein, the Commission exercises its discretion to reconsider
the previous decision on its own motion pursuant to 29 C.F.R. � 1614.405.
The previous decision affirming the agency's final decision is AFFIRMED
and complainant's petition is denied. The decision of the Commission
in EEOC Appeal No. 01980114 (October 5, 1999) remains the Commission's
final decision. There is no further right of administrative appeal from
a decision of the Commission on a request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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 16, 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.