01A52504
05-26-2006
Debra D. Archie, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Debra D. Archie,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A52504
Hearing No. 130-2004-00132X
Agency No. ARCEMOB02OCT0008
DECISION
JURISDICTION
On March 21, 2006, complainant filed an appeal from the agency's January
13, 2005 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Applications Examiner (GS-7) in Mobile, Alabama. She began her
employment with the agency in 1991, and taking advantage of the agency's
offer to finance her college education, she gained a Bachelor of Science
degree in 2000. Complainant believed that because she had obtained a
degree, she would be promoted to a GS-11 position.
In late 2002, she informed the Chief of the Enforcement Section,
her first-line supervisor (S1) and the Branch Chief, her second-line
supervisor (S2) that she had depression, anxiety and post-traumatic
stress disorder, as well as possible sleep apnea and insomnia. S2 asked
her to bring medical documentation supporting her claimed conditions.
She submitted a letter from her physician dated November 4, 2002, which
explained that she had significant excessive daytime somnolence and had
to undergo a study.
In late January 2003, complainant received her 2002 performance
evaluation. She was evaluated on four major areas: Technical Competence;
Adaptability and Initiative; Working Relationships and Communications;
and Responsibility and Dependability. The highest possible rating for
each of these areas was "Excellence," followed by "Success," "Needs
Improvement," and lastly "Fails." Complainant received "Excellence"
in each rating category, except Technical Competence where she
received a "Success" rating. Her overall performance was rated as a
"1 - Successful." Also noted on the evaluation was the comment that
"to fully reach her potential in the Regulatory arena, and as soon as a
limiting physical condition of hers is lifted, Mrs. Archie must complete
more day-to-day field assignments to gain the necessary wetland technical
expertise." Ex. F-B, Complainant's 2002 Performance Appraisal (emphasis
added). With regard to awards, complainant received a performance
award in 2002 in the amount of $1,100. See Ex. F-8. She points out
that two co-workers who are outside of her protected classes, E1 and E2,
each received performance awards greater than hers.
Complainant argues that her supervisors used her medical condition against
her when they evaluated her performance in 2002 and thereby have hindered
her promotion potential. She further argues that they discriminated
against her on the bases of her race, color, age and sex, and that they
subjected her to harassment. With regard to retaliation, complainant
points out that she engaged in prior protected activity when in 1998,
she complained about racially discriminatory practices at the agency to
the Inspector General, and again in 2002 when she wrote her congressman
asking for an investigation into her racial allegations. She further
states that after she filed the present complaint in January 2003, the
agency continued to take retaliatory action against her. She claims:
(1) she was excluded from office meetings; (2) she was not given a flat
screen computer monitor; (3) her supervisor reproached her for not having
used the authorized travel agency when on government travel; and (4)
she was denied a 4/10 work schedule.
On October 30, 20021, complainant contacted an EEO Counselor and filed
a formal EEO complaint on January 29, 2003, alleging that she was
discriminated against on the bases of race (African-American and Native
American), sex (female), color (Black), disability, age (D.O.B. 03/17/58),
and in reprisal for prior protected EEO activity (arising under Title VII)
when:
1. She received a low performance evaluation and award for rating period
2002.
As mentioned above, complainant also alleged that she was subjected to
retaliation after filing the present complaint when:
2. She was excluded from some office meetings;
3. One or more employees in her office received a flat screen computer
monitor and she did not;
4. Her supervisor informed her that she should not have charged government
travel without going to the authorized travel agency for the travel; and
5. She was denied a 4/10 work schedule.
At the conclusion of the investigation, complainant received a copy of the
report of investigation and the notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant timely requested
a hearing, and the AJ held a hearing on November 17, 2004 and issued a
decision that same day. The agency subsequently issued a final order
on January 13, 2005, adopting the AJ's finding that complainant proved
she was subjected to disability discrimination, but failed to prove she
was subjected to race or sex discrimination or retaliatory harassment.
FINAL AGENCY ACTION
The AJ found that complainant established a mixed motive case of
disability discrimination. Specifically, the AJ determined that
the comment in complainant's performance evaluation revealed that
her supervisor applied an impermissible criterion in evaluating her.
The AJ did not find that complainant had met her burden of proof with
regard to the other allegations. Due to the mixed motive finding,
the AJ ordered the agency to (1) not retaliate against complainant;
(2) remove the objectionable statement from the 2002 evaluation,
(3) schedule a one hour training session regarding the Rehabilitation
Act for S2 within the next six months, and (4) pay attorney's fees.
The agency adopted the AJ's finding without reservation.
We note that the record contains a letter from the local agency's Equal
Employment Manager to the Equal Employment Opportunity Compliance and
Complaints Review, Compliance Manager, dated January 20, 2005, stating
that the agency complied with the AJ's Order by removing the objectionable
statement from complainant's 2002 performance evaluation. The letter
informs that S2 did not receive the mandated training because he retired
just weeks after the AJ's Order of December 31, 2004. Attached to the
letter is a copy of the redacted 2002 performance evaluation without
the objectionable language.
CONTENTIONS ON APPEAL
Complainant disagrees with the findings of no discrimination in her case.
She also makes several new claims in her statement on appeal that are
unrelated to the present complaint. For instance, she argues that S1
and S2 told her no promotional opportunities were available, and yet she
later found out that such positions were in fact available. She also
claims that her job title was changed without her knowledge, and that
the Chief of Operations made improper medical recommendations to her.
We cannot take cognizance of these claims as they were not formally raised
or accepted. We may only advise complainant to initiate the EEO process
again by contacting an EEO Counselor about these claims if she wishes to
pursue them.2 With regard to arguments related to the present complaint,
she states that the supervisors should be held accountable for what they
should have known, and that they should have known that the acts they
took against her were discriminatory. She also states that the agency has
failed to comply in giving her attorney's fees as ordered by the AJ.
The agency responds pointing out that complainant raised several unrelated
contentions. With regard to her argument about attorney's fees, the
agency states that she is not entitled to any as she was not represented
by an attorney. The agency requests that we affirm its final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 Bd, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Race, Color, Age, Sex, and Reprisal Discrimination (Claim 1)
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, complainant must
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. See McDonnell Douglas, 411 U.S. at 802. Next, the
agency must articulate a legitimate, nondiscriminatory reason(s) for
its actions. See Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the agency is successful, then the complainant
must prove, by a preponderance of the evidence, that the legitimate
reason(s) proffered by the agency was a pretext for discrimination.
See id. at 256.
The analysis of a retaliation claim follows the same McDonnell Douglas
three part test. First, complainant must establish a prima facie case
of retaliation by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination. See Cardozo v. Dep't of
Homeland Security, EEOC Appeal No. 07A30014 (June 2, 2004). To do this,
complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in protected activity; (2) the agency was aware
of the protected activity; (3) she was subjected to adverse treatment
by the agency; and (4) a nexus exists between the protected activity
and the adverse treatment. See McDonnell Douglas, 411 U.S. at 802;
Hochstadt v. Worcester Found. for Exper. Biol., Inc. 425 F. Supp. 318
(D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to claims of reprisal); Coffman v. Dep't of Veteran Affairs,
EEOC Request No. 05960473 (Nov. 20, 1997). The nexus may be shown by
evidence that the adverse treatment followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. See Clay v. Dep't of Treasury, EEOC Appeal No. 01A35231
(Jan. 25, 2005).
We find that the evidence substantially supports the AJ's findings of
fact on complainant's race, color, age and sex discrimination claims.
Complainant argues that E1 and E2 are similarly situated employees
outside of her protected classes who were treated more favorably
because they received higher performance evaluations and awards.
The AJ however determined that these comparators did not support
complainant's claims because E1 was 20 years older than complainant and
E2 was 2 years older, and they are both women. Therefore, they were not
outside of complainant's protected classes with regard to these bases.
They did however serve to make out a prima facie case of race and color
discrimination as the comparators were both White.3 We find the evidence
supports these findings. As for the retaliation claim, we agree that
complainant failed to establish a prima facie claim because, although
she participated in protected activity in late 2002 by writing her
congressperson about the alleged racial discrimination at the agency,
there was no indication that either S1 or S2 knew about the letter.
Continuing with the McDonnell Douglas analysis in regard to complainant's
race claim, the AJ noted that S1 testified that the "successful" rating,
as opposed to an "excellence" rating, was appropriate for complainant
because she lacked technical abilities. Complainant did not know
the applicable regulation and "could not always put together the work
she needed to perform." AJ Decision at 229. By contrast, E1 and E2
excelled at all aspects of their jobs and merited the highly successful
ratings they received. We find this explanation to be a sufficient
and legitimate non-discriminatory reason for giving complainant the
lower rating. We note that the burden on the agency at this stage is
always one of production, not of persuasion. Complainant always bears
the burden of persuasion. This means that the agency's explanation must
only be legally sufficient to justify a judgment for the agency and
allow complainant a full and fair opportunity to demonstrate pretext.
See Burdine, 450 U.S. at 253. The agency meets its burden of production
when it provides, "a specific, clear, and individualized explanation for
the treatment accorded complainant." Lorenzo v. Dep't of Defense, EEOC
Request No.05950931 (Nov. 6, 1997). That is what it has done here.
With regard to the third step in the analysis, we agree with the AJ's
ultimate conclusion that complainant failed to prove that the proffered
reasons for giving her a lesser award and evaluation than her co-workers
was a pretext for unlawful discrimination. Complainant simply did not
bring forth any further evidence to sustain her claim.
Disability Discrimination (Claim 1)
As mentioned above, the AJ concluded that the agency had impermissibly
considered complainant's medical condition when it gave her the 2002
performance evaluation. However, the AJ also found that complainant would
have received the same performance rating even if her medical condition
had not been considered. According to the AJ, the facts showed that
complainant simply lacked the technical knowledge necessary for a higher
rating. Thus, due to this limited finding, the AJ ordered the agency to
provide complainant limited relief. The agency accepted these findings
and carried out the AJ's orders. In her appeal to the Commission,
complainant mentions that she disputes the findings on her disability
claim; however, she does not explain why specifically she disputes this
finding, nor does she provide any other supporting arguments. As such,
we decline to address the issue further and affirm the agency's final
order on this issue.
Retaliation (Claims 2-5)
In order to establish a claim of harassment based upon her prior EEO
activity, complainant must show that: (1) she engaged in prior EEO
activity; (2) she was subjected to unwelcome conduct related to her
protected class; (3) the harassment complained of was based on her
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment, and (5) there
is a basis for imputing liability on the agency. See Holton v. United
States Postal Serv., EEOC Appeal No. 01991307 (Nov. 7, 2002); McCleod
v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
There is no disputing that complainant engaged in prior protected
activity. With regard to claims 2-5, that activity relates to the filing
of the instant complaint. It is also undisputed that S1 and S2 knew of
this protected activity as they are the responding management officials.
We further accept that the incidents alleged as claims 2-3 were unwelcome.
However, we do not find any proof that the incidents are related to or
occurred as a result of her protected activity. The agency provided
reasonable explanations for each incident which complainant has failed to
rebut with any proof that they were in fact motivated by a retaliatory
animus against her. Additionally, upon viewing the totality of the
circumstances, we find that the incidents themselves are not sufficiently
severe or pervasive to create a hostile work environment. A reasonable
person in complainant's shoes simply would not view it as such.
Lastly, as the AJ addressed the question of whether the alleged incidents
involved in claims 2-5 constituted harassment based on her race, color,
age, sex and disability, we too shall address this concern. We find
that the facts do not support such a finding. The Supreme Court in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) set forth the
standard in these cases, calling upon complainant to prove that: (1)
she was subjected to harassment that was sufficiently severe or pervasive
to alter the terms or conditions of employment and create an abusive or
hostile work environment, and (2) the harassment was based on membership
in a protected class. See id. As already discussed, the evidence in
the record is insufficient to support a finding that the challenged
actions satisfied either criterion. Therefore, we find no harassment.
CONCLUSION
Having reviewed the record, we find that the evidence substantially
supports the AJ's conclusion. As such we AFFIRM the final agency order
implementing the AJ's decision and find that the agency has substantially
complied with the relief ordered by the AJ.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. The appellate decision will have a substantial impact
on the policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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
May 26, 2006
__________________
Date
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 the following recipients on the date
below:
Debra D. Archie
920 Colonial Hills Drive
Mobile, Alabama 36695
Enoch Earl. Davis
C/O 920 Colonial Hills Drive
Mobile , Alabama 36695
Ramon Suris-Fernandez, EEO Director
EEO & CR, EEO C & C Review
Department of the Army
1901 S. Bell St., 1st Fl. #109B
Arlington, VA 22202-4508
May 26, 2006
__________________
Date
______________________________
Equal Opportunity Assistan
1 Although the Counselor's Report indicates that she initiated contact
with an EEO Counselor on March 28, 2003, we find this date to be incorrect
as she filed her Formal Complaint two months earlier on January 29, 2003.
The pre-complaint records reveal that she first contacted the EEO Office
regarding her claims on October 30, 2002. See Pre-Complaint Intake
Interview.
2 We note, however, that the Commission cannot accept charges of criminal
violations as it is beyond our jurisdiction. Our enforcement power is
limited to the EEOC Regulations and criminal allegations fall outside
the purview of those regulations. With regard to complainant's stated
desire to appeal agency case number ARCEMOB03DEC0017, we again note that
she must follow the proper appeal procedures as set forth in the final
agency decision or order on that complaint.
3 The AJ divided the race claims into one regarding complainant's
African-American race and another as to her Native-American race.
She concluded that complainant had established a prima facie case as to
the African-American race claim, but not as to the Native-American claim
because neither S1 nor S2 knew complainant was of that racial origin.
As we ultimately determine that both race claims fail, we do not address
whether the AJ's analysis is correct.
4 With regard to complainant's claim for attorney's fees, we find she
is not entitled to any as she was not represented by an attorney. See 29
C.F.R. � 1614.501(e)(1)(iii); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, Ch. 11, II, C (stating that "neither a
non-attorney nor a federal employee (including attorneys) who represents
a complainant is entitled to an award of fees").
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01A52504
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A52504