01983023
03-02-1999
Teresa Q. McClellan, Appellant, v. William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency) Agency.
Teresa Q. McClellan v. Department of Defense
01983023
March 2, 1999
Teresa Q. McClellan, )
Appellant, )
)
v. ) Appeal No. 01983023
) Agency Nos. DT-96-001, DT-96-026
William S. Cohen, )
Secretary, )
Department of Defense )
(Defense Logistics Agency) )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning her equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented are: (A) whether appellant has established by a
preponderance of the evidence that the agency discriminated against her:
Complaint No. DT-96-001: on the bases of sex (female) and reprisal
(prior EEO activity) when:
(1) on July 28, 1995, appellant's first-line supervisor (Supervisor 1,
male) performed a physical inspection of appellant's clothing by placing
his fingers on her legs to check the length of her shorts, and then
repeated the process with a ruler;
(2) on August 8, 1995, Supervisor 1 annotated appellant's 7-B card to
reflect that appellant had worn inappropriate clothing that did not meet
safety rules, and that appellant had left work early;
(3) on August 11, 1995, Supervisor 1 harassed appellant by verbally
counseling her for leaving her work area to go to the credit union,
asking her to roll down the cuffs of her shorts, and locking the door
to Building 5D-2;
(4) on August 21, 1995, appellant was verbally attacked by the Chief of
the Stock Maintenance Division (the Chief, female), who told appellant
that her attire was not appropriate for her job, and made references to
appellant's underwear and breasts at a meeting;
(5) on September 5, 1995, the Division Chief (male) issued appellant
a Memorandum for the Record on the subject of "Disruption and Morale of
Workplace";
(6) on September 6, 1995, appellant was instructed by her former
first-line supervisor (Supervisor 2, male) to work in another area of
Building 11-C; and
Complaint No. 96-96-026: on the bases of race (Hispanic) and reprisal
(prior EEO activity) when:
(7) on October 24, 1995, she was issued a "Notice of Decision �
Reprimand"; and
(B) whether the agency properly determined that appellant was not entitled
to an award of attorney fees.
BACKGROUND
In complaints filed September 25 and December 5, 1995, appellant,
then a Packer Fork-Lift Operator, WG-7002-06, at the agency's Defense
Distribution Depot, Ogden, Utah, alleged that the agency had discriminated
against her as set forth in the above-entitled statement, "Issues
Presented." Appellant subsequently amended Complaint No. DT-96-026
to include discrimination based on race (Hispanic).<1> The agency
investigated appellant's complaints; provided appellant with a copy of
the resultant investigative reports; and advised appellant of her right
to request either a hearing before and EEOC administrative judge (AJ)
or an immediate final agency decision (FAD). Appellant requested an
immediate FAD. On January 30, 1998, the agency issued a FAD finding
no discrimination as to Issues 1 through 4 of Complaint No. DT-96-001,
but admitting reprisal discrimination with regard to Issues 5 and 6;
and admitting discrimination based on race (Hispanic) with regard to
the sole issue of Complaint No. DT-96-026. It is from this decision
that appellant now appeals.
ANALYSIS AND FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
appellant herein, to initially establish that there is some substance
to his or her allegation. In order to accomplish this burden the
complainant must establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see
also Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
This means that the complainant must present a body of evidence such
that, were it not rebutted, the trier of fact could conclude that
unlawful discrimination did occur. The burden then shifts to the
agency to articulate a legitimate, non-discriminatory explanation for
its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). In this regard, the agency need only produce evidence
sufficient "to allow the trier of fact rationally to conclude" that the
agency's action was not based on unlawful discrimination. Id. at 257.
Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion, by
a preponderance of the evidence, remains at all times on the complainant.
Burdine, 450 U.S. at 256. Where the agency has explained its actions,
however, the Commission may proceed directly to the question of whether
the complainant has established pretext.
Physical Inspection of Appellant's Clothing
The record reflects that the agency's dress/safety rules allow employees
to wear shorts to work, provided that the bottom hem of the shorts is
no more than two inches above the knee. On July 28, 1995, the Packing
Supervisor (male) approached appellant and informed her that he believed
the shorts she was wearing were shorter than allowed. The Packing
Supervisor first attempted to gauge the distance between appellant's
shorts and her knee with his fingers, then returned with a ruler.
He pronounced the shorts "borderline," but acceptable. The Packing
Supervisor stated that he checked appellant's shorts, and those of
three other employees who were wearing shorts (all female), because they
appeared to be shorter than were allowed by workplace dress/safety rules.
One employee, whose shorts were more than a hand-width above her knee,
was sent home to change. Another was told to roll down the cuffs on
her shorts to comply with the length requirement. A third was told to
roll down her cuffs and cut off frayed edges. Appellant was not told to
do anything. The agency's explanation meets its burden. Appellant has
adduced no evidence to show that this explanation is merely a pretext
for sex or reprisal discrimination.
Annotation of Appellant's 7-B Card
The record reflects that on August 8, 1995, the Packing Supervisor
annotated appellant's 7-B card<2> to reflect that on two occasions
appellant had worn a shirt whose sleeves were shorter than permitted by
the dress/safety rules, and that on one occasion appellant had left work
early. Regarding the shirt, the record reflects that dress/safety rules
require that all shirts worn have sleeves which cover the shoulders.
The Packing Supervisor explained that he annotated appellant's card
regarding the shirt when she wore it to work a second time after being
specifically informed that the shirt, which was sleeveless, did not meet
dress requirements. The Packing Supervisor further explained that he
annotated appellant's card regarding an early departure because on August
4, 1995, he did not see appellant leave through the sole exit with the
other employees at quitting time, but that a witness had seen her depart
in a vehicle before everyone else left. This explanation is sufficient to
meet the agency's burden. Appellant has adduced no evidence to show that
this explanation is merely a pretext for sex or reprisal discrimination.
Harassment by Verbal Counseling, Being Asked to Roll Down Her Shorts,
Locking the Door
On August 11, 1995, appellant and another employee left the work area
to go to the credit union. Appellant stated that they had tried to
find the Packing Supervisor to ask permission, but that when they could
not find him they told his secretary where they were going and left
the work area. They were gone from the work area for about one hour
and fifteen minutes. When they returned, the cargo door through which
they left had been locked. The Packing Supervisor explained that the
cargo door through which appellant exited was secured per usual practice
after the truck parked there had been unloaded. He stated that he let in
appellant and the other employee, asked them where they had been, asked
appellant to roll down the cuffs on her shorts (which he stated were
"at least half way up her thighs" in violation of dress/safety rules),
then sent them back to work. This explanation meets the agency's burden.
Appellant has adduced no evidence to show that this explanation was a
pretext for sex or reprisal discrimination.
"Verbal Attack" by Chief of Stock Maintenance Division
Appellant stated that during a meeting on August 21, 1995, the Chief of
the Stock Maintenance Division (the Chief) (female) "verbally attacked
me stating that my clothing was not appropriate for the job, making
reference to my underwear and breasts." Appellant claimed that this
was sexual harassment and reprisal. The Commission notes that the
facts alleged present an allegation of harassment based on sex; sexual
harassment occurs where there has been conduct of a sexual nature,
which is not the case here. E.g., Blalock v. Dept. of the Air Force,
EEOC Appeal No. 01964542 (November 20, 1998). Appellant also claimed at
one point that the Chief demanded that she drop a pending EEO complaint,
a claim disputed by the Chief and by another employee who was present.
The Chief explained that she asked appellant whether the blouse she
(appellant) was wearing was like the one the Packing Supervisor had
told her not to wear. The Chief stated that she told appellant that
the blouse was not appropriate because it had large armholes, which
could result in appellant revealing her undergarments to her coworkers.
This explanation meets the agency's burden. Appellant has not adduced
evidence to show that the agency's explanation was a pretext for sex or
reprisal discrimination.
Memorandum for the Record re: "Disruption and Morale of Workplace";
Instructed to Work in Another Area; Notice of Decision - Reprimand
The agency has admitted reprisal discrimination with regard to these
allegations. As relief, the agency stated that all agency records would
be expunged with regard to the September 5, 1995, memorandum and the
October 24, 1995, written reprimand. The agency noted that appellant has
retired, leaving it unable to offer corrective action with regard to the
reassignment. The agency further stated that it would pay compensatory
damages subject to proof, and set forth the procedure for appellant to
claim and substantiate compensatory damages.
No Award of Attorney Fees
The agency stated in the FAD that appellant was not entitled to attorney
fees because the individuals who represented her were not members of the
bar, nor did they otherwise meet the regulatory criteria for payment of
attorney fees. On appeal, appellant argues that legal services were
performed for her by two individuals, one of whom is an "unlicensed
attorney"<3> working under the supervision of a member of the bar,
and that she is therefore entitled to an award of attorney fees.
The Commission finds the agency's determination on attorney fees to
be premature. Pursuant to the Commission's regulations and caselaw,
appellant as a prevailing party is entitled to an award of attorney
fees if she was represented by an attorney. Such fees are payable
for the services of members of the bar and law clerks, paralegals,
and law students working under the supervision of a licensed attorney.
29 C.F.R. �1614.501(e)(1)(iii). Given the opportunity to submit a fee
petition in accordance with 29 C.F.R. �1614.501(e), appellant may be
able to establish her entitlement to attorney fees. Accordingly, the
portion of the FAD denying an award of attorney fees will be vacated.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
the final agency decision is AFFIRMED IN PART and VACATED IN PART,
relief is awarded as set forth below.
ORDER (C1092)
The agency is ORDERED to take the following remedial action:
(1) Within thirty (30) days of the date on which this decision becomes
final, if it has not already done so the agency shall expunge all official
records pertaining to appellant with regard to the September 5, 1995,
memorandum and the October 24, 1995, written reprimand.
(2) If it has not already done so, the agency shall pay appellant's
proven compensatory damages. If appellant has not yet submitted proof
of damages in accordance with the FAD, the agency shall request appellant
to submit such proof, and shall allow appellant at least forty-five (45)
days from the date of its request to do so. Within forty-five (45)
days of receiving appellant's proof, the agency shall issue a new FAD
limited to the issue of appellant's entitlement to compensatory damages.
(3) Within ninety (90) days of the date on which this decision becomes
final, the agency shall provide EEO training to the supervisory personnel
of its Ogden, Utah, Defense Distribution Depot, Stock Maintenance
Division, particularly with regard to reprisal discrimination.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Defense Distribution Depot, Ogden,
Utah, 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 (H1092)
If appellant 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 (K0595)
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
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). Appellant 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. ��
1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS DAYS of the date you filed your complaint with the agency,
or filed your appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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 2, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations
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 this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Defense, Defense Logistics Agency, supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Department of Defense, Defense Logistics Agency, has been
found to have discriminated against the individual affected by the
Commission's finding. The Department of Defense, Defense Logistics
Agency, shall expunge all records of a disciplinary memorandum and
notice of reprimand issued to the affected individual; shall pay the
affected individual's proven compensatory damages; shall pay the affected
individual's reasonable attorney fees and costs; and shall provide EEO
training for Stock Maintenance Division supervisory personnel at its
Defense Distribution Depot, Ogden, Utah. The Department of Defense,
Defense Logistics Agency, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The Department of Defense, Defense Logistics Agency, 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
1Although appellant stated this basis as "race," the identifier "Hispanic"
typically denotes a national origin rather than a race.
2The nature of the 7-B card is not readily apparent, although it appears
to be in the nature of a time and attendance card.
3This individual has received a law degree, but has not been admitted
to the bar.