Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Feb 13, 2013

0120111397 (E.E.O.C. Feb. 13, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120111397

Agency No. HS 08-FEMA-00161

DECISION

Complainant filed an appeal from the Agency’s December 9, 2010 Final Decision concerning
her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Payroll
Specialist at the Agency’s Mississippi Transitional Recovery Office facility in Biloxi,
Mississippi. On February 7, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her and subjected her to a hostile work environment on the bases
of race (Caucasian), color (white), and in reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when:

1. On February 29, 2008, Complainant was terminated from her Payroll Specialist
(Time Unit Lead) position with the Mississippi Transitional Recovery Office
(MS TRO);

2. In January 2008, a co-worker and other employees told Complainant that a
management official was spreading rumors and gossiping about Complainant’s
situation;

3. In December 2007, S2, a management official, told Complainant that she could
not work additional time to compensate for an extended lunch break;
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4. In December 2007, a Human Resources Specialist (HR1) confiscated
Complainant’s key to Complainant’s personal cabinet;

5. On December 12, 2007, Complainant was removed from her position because a
management official accused Complainant of not validating a co-worker's
timesheet. Complainant was informed that she could resign or be placed on a
non-paid status, and was then escorted from the building pending an
investigation;

6. On or about December 12, 2007, Complainant and an Asian female coworker
were not allowed to work overtime, like other co-workers (African-American)
in the department;

7. On December 11, 2007, Complainant was accused of not validating her co-
worker's timesheet;

8. In December 2007, S2 reprimanded Complainant for not completing a payroll
issue for another management official;

9. On December 6, 2007, Complainant informed S3, a management official, that
S2 was reporting fraudulent time on her timesheet and S3 told Complainant to
leave;

10. On November 30, 2007, Complainant learned that her 3rd Quarter performance
evaluation was changed from "Outstanding" to "Less Than Expected." The
lower rating prevented her from receiving a cash award;

11. On November 28, 2007, a co-worker told Complainant about the change in the
new payroll system. S1 never informed Complainant of the changes;

12. On November 8, 2007, Complainant was denied leave by S1 and she believes
this was unfair because it was the day after a holiday and minimal staff was
needed in the office;

13. Since November 2007, Complainant was denied the right to leave her
department and S1 harassed her when Complainant asked for permission to take
an extended lunch;

14. On August 1, 2007, Complainant received a written warning from S1 for
making a recommendation to a management official;

15. In August 2007, Complainant was informed by S2 that she was not allowed to
work overtime;
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16. On July 21, 2007, S2 refused to celebrate Complainant’s birthday or sign her
birthday card;

17. On June 19, 2007, S2 refused to have a personal discussion with Complainant
because Complainant brought a witness to the discussion;

18. On June 12, 2007, Complainant was informed that S2 stated she had not
attended an orientation, but Complainant’s informant was unaware of the
situation;

19. On May 11, 2007, Complainant was informed that another employee (E1) had
to report all of her conversations to S2. Complainant was also informed by E2
that the employee would receive a Human Resource Specialist position as a
reward;

20. In May 2007, S2 accused Complainant of causing a system problem that
prevented employees from being paid;

21. In May 2007, Complainant was subjected to retaliation because she reported to
S3 that S2 was committing time fraud;1

22. In April 2007, S2 verbally reprimanded Complainant for contacting an
employee from the Office of General Counsel to inquire about changing another
employee's timesheet;

23. On March 27, 2007, Complainant received a verbal reprimand from S1 and S2
for sending an unapproved "all hands" email;

24. In March 2007, Complainant’s requests to attend off-site meetings to learn about
payroll was denied by S1 (on S2’s behalf), but similarly situated employees
were permitted to visit other sites;

25. In December 2006, S1 told Complainant that he could no longer talk to
Complainant or "the White girls in the office"; and

26. Since September 2006, Complainant has been subjected to a hostile work
environment, and S2 set her up to be terminated.2

1 The Agency found that incident (21) did not allege a specific incident motivated by reprisal.

2 We note that incident (26) is a summary of Complainant’s experience from 2006, to the time
her complaint was filed, and her belief as to the responsible Agency official’s objective. We
do not find that incident (26) stands independently from the remainder of Complainant’s
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).

In its Decision, the Agency found that incidents (10) (performance evaluation), (12) (denied
leave), (13) (denied leave), (14) (written warning), and (15) (denied overtime), were not
presented for counseling within the 45-day time limit. The Agency found that Complainant
met with an Agency Equal Rights Office (ERO) representative on October 30, 2007, and again
on December 5, 2007. For the instant complaint, the Agency noted that Complainant initiated
the EEO process on January 22, 2008. The Agency concluded that Complainant was aware of
the 45-day time limit and that the incidents in claims (10), (12), (13), (14), and (15), were not
presented for counseling within 45 days of the date they occurred. The Agency dismissed
these five discrete incidents pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
Counselor contact. Nevertheless, the Agency considered these allegations as background
evidence in support of Complainant’s overall claim of harassment.

The Agency further found that with respect to incidents (1), (5), and (8), that the Agency
articulated legitimate, non-discriminatory reasons for its actions. Significantly, the Agency
noted that when asked why Complainant believed that her color or race motivated the Agency’s
actions, Complainant responded “N/A”, indicating that she believed the question was not
applicable. The Agency found that Complainant did not present any evidence that Complainant
(or her assistant) was treated differently than any other employee under the same circumstances
and that Complainant failed to show that the Agency’s reasons for its actions were a pretext to
mask discrimination.

Regarding claims (3) and (6), the Agency found that Complainant was not denied the
opportunity to make up time at the end of her tour to make up for an extended lunch period.
The Agency further found that with regard to overtime, that employees are required to request
overtime in advance, but that on December 12, 2007, Complainant was working for another
supervisor. The Agency found no evidence that Complainant was treated differently because
of her race or color or in reprisal for her prior EEO activity and that Complainant did not
present any evidence that the Agency’s reasons for its actions were pretext for discrimination.

With respect to Complainant’s remaining claims and her overall claim of harassment, the
Agency found that the responsible management officials denied a number of Complainant’s
claims. The Agency found that even if those incidents occurred as alleged, that Complainant

articulated claims, but instead serves to represent the collection of stated and unstated acts of
S2’s harassment that Complainant alleges occurred during the specified time frame.
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had not proved that any of the incidents of which she complains were motivated by her race,
color, or prior protected activity. The decision concluded that Complainant failed to prove that
the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

In the absence of direct evidence, a claim of discrimination is examined under the three-part
analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973).
For petitioner to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner
bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence
that the agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502 (1993).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment.
The Court explained that an "objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive:” and the complainant subjectively
perceives it as such. Harris, supra

at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or inaction regarding a
specific term, condition or privilege of employment, a claim of harassment is actionable only
if, allegedly, the harassment to which the complainant has been subjected was sufficiently
severe or pervasive to alter the conditions of the complainant's employment.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
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Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).

Untimely claims (10), (12), (13), (14) and (15)

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity Counselor within 45
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action. The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-
day limitation period is triggered. See Howard v. Dep’t of the Navy

, EEOC Request No.
05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent.
We find that the Agency properly dismissed the discrete incidents described in incidents (10),
(12), (13), (14), and (15) for untimely EEO Counselor contact pursuant to 29 C.F.R.
§1614.107(a)(2). Even if these incidents should be considered timely raised as part of the
harassment claim, we find no discrimination, as we do for the entire complaint.

Reprisal pre-October 30, 2007

We note that Complainant states repeatedly in her complaint and on appeal that the reason S2
engaged in the actions that she did was because Complainant reported to management that S2
had falsified her time card. We find that the reporting of fraud unrelated to any discriminatory
basis cannot serve as grounds for a reprisal claim. We do not find that Complainant identified
any other protected activity of which S1 or S2 was aware before her consultations with the
Agency’s ERO on October 30, 2007. We note, as did the Agency, that Complainant states she
first sought assistance from the Agency’s ERO because she believed she was being retaliated
against after she reported S2’s fraudulent activities. We find that the incidents of
Complainant’s harassment claim that occurred before October 30, 2007, do not therefore state
a claim of harassment based on reprisal.

Harassment incidents (2), (9), (11), (16), (17), (19) and (25)

We find that a number of the incidents described by Complainant include minor or trivial
workplace conduct (claims (2), (9), (11), (17), and (19)). Some incidents entail alleged petty
slights or it is not clear how Complainant was harmed by the alleged conduct (claims (16) and
(25)). We find that these incidents (claims (2), (9), (11), (16), (17), (19) and (25)) do not rise
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to the level of harassment either alone or in light of Complainant’s remaining harassment
claim.

Harassment incidents not motivated by discrimination

We further note, as did the Agency, that Complainant specifically denies any link between her
race or color with specific incidents described in her complaint. Complainant does not identify
any corroborating evidence to support her race or color harassment claim when asked to
articulate the reasons she believes her membership in the identified protected groups played a
role in the Agency’s actions.

In her affidavit, Complainant describes the reasons she believes she was subjected to
harassment described in incident (3) (denied an extended lunch break) as follows:

Q: How were you discriminated against on the bases of race and color when you
were informed that you could not work for an extended lunch break?

A: N/A

Regarding claim (18) (missing orientation), Complainant responds to questions regarding the
bearing of her race and color on this incident as follows:

Q: Once you discovered that it was reported that you had not attended did you
inform the management official the date you attended the orientation?

A: N/A

Q: Explain how you believe you were discriminated against on the bases of race
and color?

A: N/A

Similarly, Complainant responds “N/A” when asked about her race, color, and reprisal with
respect to the incident described in (24) (denied off-site meeting):

Q: Identify the similarly situated employees who were allowed to attend off-site
meetings in March 2007.

A: [HR1], [E2], [E3], and [E4].

. . . .

Q: Explain how you believe you were discriminated against on the bases of race
and color?
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A: N/A

Q: How did you believe that the management officials retaliated against [you in]
this incident?

A: N/A

Complainant was asked to explain her efforts to report harassment to the Agency and the basis
of her overall harassment claim:

Q: Did you tell your second or third level supervisor that you were being subjected
to a hostile work environment? Yes or No. If yes, what corrective action did the
supervisor or manager tell you how they would look take to correct the
situation?

A: I informed [S1] that I was being treated unfairly by [S2].

Q: Explain how you believe you were discriminated against on the bases of race
and color?

A: N/A

Q: How did you believe that the management officials retaliated against [you in]
this incident?

A: N/A

We observe that Complainant responded “N/A” to a number of questions regarding her
evidence of race, color, and reprisal discrimination. We interpret these responses as
Complainant’s concession that she has no reason to believe that her race or her color or
reprisal motivated the Agency’s actions.

Complainant restates on appeal that she believes that the accusations set forth by the Agency in
her letter of termination were false or fabricated and that Complainant’s real error was in not
reporting S2’s timecard fraud to the Agency’s hotline, rather than reporting it as she did.
Complainant’s letter of termination included specifications that are mirrored in the incidents of
Complainant’s complaint (e.g., claims (1), (5), (7), and other actions that directly preceded
Complainant’s removal from the Agency). We find that on appeal, Complainant all but
abandons her belief that her race, color, or protected EEO activity motivated S2’s action.
Rather, Complainant underscores her contention that she suffered retaliation and harassment
after she reported S2’s fraud. The Commission has found that engaging in whistle-blower
activity (reporting fraud, waste and abuse of government resources) is insufficient to serve as
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the basis upon which to allege reprisal under the laws enforced by the Commission. Lemke v.
Dep’t of Homeland Security, EEOC Appeal No. 0120122537 (November 5, 2012).

We concur with the Agency that Complainant has failed to show that more likely than not that
the incidents of harassment, including her ultimate removal from the Agency were motivated
by her race, color, or prior protected EEO activity.

CONCLUSION

We AFFIRM the Agency’s Final Decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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).
0120111397

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(S0610)
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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

February 13, 2013
Date