01a60675_r
08-18-2006
Jenny L. Purkett, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Management Agency) Agency.
Jenny L. Purkett v. Department of Defense
01A60675
August 18, 2006
.
Jenny L. Purkett,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Contract Management Agency)
Agency.
Appeal No. 01A60675
Agency No. YT-03-004
Hearing
No. 340-2003-00081X
DECISION
Complainant, a Secretary (Office Automation), GS-318-05, initiated
contact with an EEO Counselor on September 5, 2002. On December 23,
2002, complainant filed a formal EEO complaint in which she claimed that
the agency discriminated against her and subjected her to discriminatory
harassment on the bases of her race (Asian) , national origin (Korean)
and in reprisal for her previous EEO activity under Title VII when:
1. On May 21, 2001, complainant was issued a Special Counseling
Memorandum.
2. On July 14, 2001, complainant's supervisor and several of her
coworkers had discussions regarding new procedures for processing
selection certifications, and two coworkers discussed who is involved
in the current process, whether the process was currently being handled
correctly, and who should be assigned that function.
3. In October 2001, complainant was prevented from responding to a
selecting official's inquiry.
4. On November 28, 2001, complainant's supervisor had discussions
with complainant regarding the procedures for processing selection
certifications.
5. On January 9, 2002, complainant's desk audit assessment was rejected.
6. In February 2002, complainant's performance was rated Minimally
Acceptable.
7. In March 2002, complainant was issued a performance improvement plan.
8. In June 2002, complainant's coworkers allegedly provided testimony
regarding her demeanor to them and that led to her suspension.
9. On June 28, 2002, complainant's supervisor issued a Notice of Proposed
Suspension letter, which proposed a suspension of three days.
10. On June 20, 2002, complainant's supervisor issued complainant a
mid-year performance rating with a summary rating of Unacceptable.
11. In August 2002, complainant's supervisor questioned complainant
concerning the length of time she spent with her union representative,
asking, �What did you do all day?�
12. In August 2002, complainant's supervisor stated that he would inform
Human Resources that he had instructed complainant not to send e-mail
to the CMO's, but that she had done so again.
13. Complainant was required to annotate her timecard when she came in
late between September 1999 and September 2002.
14. On October 4, 2002, complainant was directed to tell her supervisor
when she would be away from her desk although her coworkers are not
required to follow the same procedure.
15. On October 7, 2002, after complainant had been away from her desk
on a call to an EEO Counselor, complainant's supervisor stated, �I told
you to tell me when you're away from your desk.�
16. On October 11, 2002, when complainant called in sick, complainant's
supervisor informed her that her sick leave exceeded 240 hours, and that
he would discuss the situation with the Human Resources Office.
17. On October 28, 2002, complainant was directed to complete an online
examination by the next day following IMPAC training.
18. Complainant was allegedly accused of not processing a request for
personnel action on November 5, 2002.
19. Complainant was denied an award in November 2002 yet other employees
in the EEO Office received awards.
20. On November 20, 2002, complainant was prevented from responding to
an inquiry.
21. Derogatory comments were allegedly made concerning complainant at
every EEO staff meeting since October 2002.
22. On November 26, 2002, complainant's supervisor questioned her about
her response to an e-mail message from the Chicago Human Resources Office,
asking, �Why is this flagged? What is the significance of this?�
23. On November 27, 2002, complainant was questioned about her proposed
time sheets and was told she had an arguing attitude and was wasting
her supervisor's time.
24. Complainant was told that she could not attend additional IMPAC
training on December 11, 2002.
25. On December 12, 2002, complainant's supervisor informed her that
the cardholder function would be assigned to another employee.
26. On January 8, 2003, complainant was issued a Memorandum for Record
(Counseling).
On January 24, 2003, the agency dismissed claims (2), (4), (11), (12),
(16) and (22) pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds of
failure to state a claim. The agency determined that these incidents were
not sufficiently severe to state a claim of a hostile work environment.
The agency stated that complainant failed to show a present unresolved
harm or loss affecting a term, condition or privilege of her employment.
Claims (9), (10), (12), (16) and (25) were dismissed pursuant to 29
C.F.R. �1614.107(a)(5) on the grounds that they involved proposed actions.
The agency accepted for investigation the remaining claims, including
an additional claim raised on January 31, 2003 (hereinafter referred to
as claim 27), alleging that on the aforementioned bases on January 27,
2003, complainant's supervisor rated complainant's performance for the
January 1, 2002 - December 31, 2002 rating cycle as Minimally Acceptable.
By letter dated April 22, 2005, complainant advised an EEOC Administrative
Judge that she wished to withdraw her request for a hearing and she
requested an agency final action.
On September 19, 2005, the agency issued a final action wherein
it dismissed claims (1), (3), (5), (6), (7) and (8) pursuant to 29
C.F.R. �1614.107(a)(2) on the grounds that complainant failed to initiate
contact with an EEO Counselor in a timely manner when she initiated
contact on September 5, 2002. The agency also dismissed claim (1) on
the grounds of failure to state a claim and mootness. The agency stated
that complainant is no longer employed with the agency and the Official
Counseling Memorandum is not a permanent part of an employee record.
Claims (3), (20), (23), (24) and (26) were also dismissed on the grounds
of failure to state a claim and mootness. Claim (17) was dismissed on
the grounds of mootness pursuant to 29 C.F.R. �1614.107(a)(5).
The agency nevertheless addressed each of the accepted claims on the
merits. The agency stated with regard to claim (1) that there is no
indication in the record that the Official Counseling Memorandum for
Record was issued for any reason other than to correct complainant's
performance in the area at issue. The agency stated as to claims (3) and
(20) that nothing in the record disputed the testimony of complainant's
supervisor that these were routine and unremarkable events. As to claim
(5), the agency stated that the evidence is consistent with the testimony
of complainant's supervisor and indicates that complainant's position was
audited and found to be correctly classified. With respect to claims (6),
(7) and (27), the agency noted that each claim involved complainant's
overall performance during calendar year 2002. According to the agency,
complainant's performance was documented throughout this period via the
warning letter of March 6, 2002, the performance improvement plan and
complainant's final performance rating.
As for claim (8), the agency observed that the allegation that
complainant's coworkers provided testimony is not an allegation of
mistreatment by the agency as an employer. The agency noted that the
suspension was an employer action and that there is no indication in the
record that the suspension was issued for any reason other than to correct
complainant's performance in the relevant area. Regarding claim (9)
the agency asserted that the suspension was issued because complainant's
demeanor was considered hostile and intimidating. With respect to claims
(13), (14) and (15), the agency determined that complainant's supervisor
and coworkers all asserted that there were problems of complainant having
unexplained absences from the work area, thus justifying the measures
taken and that such measures were taken with regard to all of the staff.
With regard to claims (17) and (24), the agency determined that the record
does not support complainant's assertion that she was ever inappropriately
required to complete IMPAC card training or denied such training.
According to the agency, the IMPAC card training was consistent with
an assignment that complainant separately alleged was threatened to
be removed. As for claim (18), the agency determined that there is no
basis in fact for the claim since complainant stated that she was not
asked to process the personnel action and her supervisor stated that since
complainant did not have access to the personnel system, it was processed
elsewhere and there was nothing accusatory. As for claim (19), the agency
noted that performance has to be at the Acceptable level to even merit
consideration for an award. With respect to claim (21), the agency stated
that the involved individuals denied under oath making the statement �We
have a rat in this office� or any similar statement and there is no other
corroboration of complainant's assertion. With respect to claim (23),
the agency determined that complainant's testimony was insufficient to
establish either that the explanation given by management was unworthy of
credence or that it was a pretext for a decision more likely motivated
by either discriminatory or retaliatory animus. As for claim (26),
the agency observed that complainant admitted that she was directed to
process one set of certificates by her supervisor, but that she did other
certificates first because she considered them to be more important.
Finally, the agency determined that even if the claims are analyzed
cumulatively, they cannot support a finding that harassment occurred.
On appeal, complainant argues that she was subjected to more scrutiny
by her supervisor than her coworkers. Complainant maintains that the
harassment she was subjected to caused her to suffer much emotional
distress.
In response, the agency asserts with regard to claim (1) that the
Special Counseling Memorandum was issued to complainant for her
unprofessional behavior when she engaged in a heated exchange with
a coworker. As to claim (6), the agency states that complainant was
marked down on her appraisal because of her lack of cooperation with
her coworkers. The agency states that complainant received a two for
customer service largely because she refused to accept her coworkers
as customers in accordance with agency policy and did not provide
them with an acceptable level of service. In terms of claim (19),
the agency asserts that complainant was not eligible for an award due
to her Unsatisfactory performance rating. The agency notes that the
caliber of complainant's work was not at the same level as those who did
receive awards. With regard to claim (26), the agency asserts that the
Memorandum for Record was issued because complainant did not complete
work in accordance with her supervisor's instructions. As for claim
(27), the agency asserts that complainant again received a rating of two
for customer service because of volatile relationships with customers.
With respect to complainant's claim of a hostile work environment, the
agency asserts that even if one accepts the various incidents as having
occurred over a five-year period of time, they do not rise to the level
of establishing a hostile, abusive or offensive working environment.
Initially, we shall address the claims that were dismissed by the
agency on procedural grounds in both its partial dismissal and its
final action. The record reveals that complainant initiated contact
with an EEO Counselor on September 5, 2002. With regard to claims
(1), (3), and (5-8), we observe that the relevant incidents occurred
during a period ranging from May 21, 2001 to June 2002. We find that
complainant did not initiate contact with an EEO Counselor with regard
to these incidents within the 45-day limitation period for contacting an
EEO Counselor. Accordingly, the agency's dismissal of claims (1), (3)
and (5 - 8) on the grounds of untimely EEO contact was proper pursuant
to 29 C.F.R. �1614.107(a)(2).
As for the agency's dismissal of claims (2), (4), (11-12), (16), (20)
and (22-23) on the grounds of failure to state a claim, we find that
each of the alleged actions did not cause complainant to suffer harm
to a term, condition or privilege of her employment. Moreover, these
alleged incidents, even when viewed cumulatively along with the other
alleged incidents, are of insufficient severity or pervasiveness to
state a claim of hostile work environment harassment.
We find that the alleged incidents in claims (10) and (25) involved
proposed actions and that therefore they were properly dismissed pursuant
to 29 C.F.R. �1614.107(a)(5). Furthermore, we find that complainant
is not aggrieved by either incident in claims (10) and (25).
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
For complainant to prevail, she 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
Harassment is actionable only if the incidents to which complainant
has been subjected were sufficiently severe or pervasive to alter
the conditions of complainant's employment and create an abusive
working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998). To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of race, national origin, and reprisal
discrimination. With regard to claim (9) the notice of proposed
suspension states that complainant was being suspended because she
�confronted each specialist individually in a hostile manner.� With
regard to claims (13-15), the agency stated that complainant's supervisor
and coworkers asserted that complainant had unexplained absences from
the work area. We find that the agency articulated a legitimate,
nondiscriminatory reason for its actions in these claims. As for claim
(17), the agency stated that the online examination following IMPAC
training was something that complainant needed to take for one of her
assignments. Complainant's supervisor stated that complainant was to
be the person to hold the IMPAC card and ordering could not be done
for the office if complainant did not complete the exam and obtain
her certificate. We find that the agency articulated a legitimate,
nondiscriminatory reason for its action in claim (17). As for claim (18),
the agency denied there was anything accusatory concerning complainant
not processing a Request for Personnel Action. Complainant's supervisor
stated that being able to input to the personnel system is one of the
functions he would expect a secretary to be able to do and that he
subsequently requested that complainant receive training.
With regard to claim (19), the agency stated that complainant could not be
considered for an award because her performance was not at an acceptable
level. We find that this constitutes a legitimate, nondiscriminatory
reason for denying complainant an award. With respect to claim (21),
the agency denied that derogatory remarks were made about complainant at
the EEO staff meetings. With regard to claim (24), the record does not
establish that complainant was denied additional IMPAC training. As for
claim (26), the agency stated that the Memorandum for Record was issued
because complainant's supervisor was attempting to correct complainant's
behavior as she thought her work priorities were more important than
those expressed to her by her supervisor. With respect to claim (27),
the agency stated that complainant only deserved a rating of two for
Customer Service because she maintained a very volatile relationship
with the people who tried to obtain service from her. We find that the
agency articulated legitimate nondiscriminatory reasons for its actions
in claims (26-27).
Upon review of complainant's appeal, the agency's response thereto,
and the entire record, we find with regard to claims that have been
reviewed on their merits that complainant has not established that the
agency's stated reasons were pretext intended to mask discriminatory
intent. Complainant has not shown that the alleged acts of harassment,
even if these acts did occur, were sufficiently severe or pervasive to
constitute harassment. Complainant believes that she was subjected to
more scrutiny than her coworkers. However, the record indicates that
certain deficiencies in complainant's job performance necessitated
that she receive particular attention. Complainant had a difficult
relationship with her supervisor and several coworkers and she at times
had difficulty in fulfilling her job responsibilities. We find that
complainant has failed to show by a preponderance of the evidence that
she was discriminated against by the agency.
We AFFIRM the agency's final action..
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
August 18, 2006
__________________
Date