0120112243
06-28-2012
Milagros Flores, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Milagros Flores,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120112243
Agency No. NPS100162
DECISION
On March 22, 2011, Complainant filed an appeal from the Agency's February 25, 2011, final decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). 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 Caribbean Park Historian at the Agency's National Park Service, San Juan National Historic Site facility in San Juan, Puerto Rico.
On January 21, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic), national origin (Puerto Rican), age (49), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. on October 6, 2009, Complainant's access to the archival building and archival collection assignments ceased and were given to a coworker (C1: 38 years old, race and national origin unspecified)
2. Complainant has not received a mid-term or annual performance evaluation since the 09 Fiscal year;
3. Complainant's position was realigned to the Southeast Regional Office, effective January 31, 2010;
4. on or around January 2010 Complainant's duties and position description were changed and she was told she would no longer be working on the Virgin Island Collection project;
5. on February 24, 2010 Complainant was told to give full access of her computer and access to the archives building files for archives collections to a visiting Chief of the Division (CD: 45 years old, Caucasian, national origin unspecified) and to relocate her work space during the time of the regional employee's visit;
6. Complainant was subjected to a hostile work environment.
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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency dismissed one of Complainant's allegations regarding alleged retaliation by management when in November 2009 she reported prohibited practices and identified a younger employee as responsible for fraud and misuse of government property on the grounds that retaliation for whistleblowing was not covered under EEO regulations. As Complainant has not specifically addressed this dismissed issue on appeal, we decline to address it here.
With regard to the allegations of harassment, the Agency found that Complainant had not shown that the actions complained of were sufficiently severe or pervasive as to constitute harassment, or that they were based on her age, race, national origin, or reprisal. The FAD further found that, with regard to the allegations of disparate treatment, Agency officials articulated legitimate nondiscriminatory reasons for their actions and Complainant failed to show that such reasons were a pretext for discrimination. The FAD found that management said that Complainant's access to the archival building and archival collection assignments were removed because they did not relate to her position as a Historian and because of alleged inappropriate handling of the collection by Complainant. The delay in Complainant receiving her mid term and final evaluation was due to Complainant's request for a desk audit and to Supervisor workloads. The changes in Complainant's position description or duties was due her performance and the removal of the archival function from her purview. With regard to Complainant being required to provide full access of her computer, the archives building file, and her work space to CD, management said that this was necessary to give CD access to Complainant's files for inventory and to avoid any conflict between Complainant and CD. The Agency finally concluded that Complainant failed to show that the Agency's articulated reasons for its actions were a pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant presented no argument on appeal and the Agency requests that we affirm the FAD.
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").
Complainant alleges that "After several requests and follow ups, [with her then Supervisor] a date was set" in November, 2009 for her then Supervisor (S1: Caucasian, European, 54 years old) to provide Complainant with her FY 09 evaluation. At the meeting, S1 told Complainant that "I have been told you are under investigation," See Report of Investigation, (ROI), Exhibit 1, p. 8, and showed Complainant a memorandum stating that CD requested that Complainant cease work with various archival collections and "it was strongly recommended that I be moved to a different office." Id. Complainant further stated that she never did receive her FY 09 performance evaluation and was never given a satisfactory reason why. Id. Complainant stated that the memorandum further stated that C1 was to be "given complete access to the archival building, and archival collections" instead of Complainant. Id. In addition, Complainant alleged that a Superintendent (S2: Caucasian, Hispanic, 53 years old):
has demonstrated a hostile treatment against me, rejects every suggestion, idea, and project I submit to the park for approval. [S] has excluded me completely from the park management team; he has excluded me from the park interpretive planning for the park and Cultural Resources Planning for the park. [S]'s responses to my requests and work for the park are of continuous rejection, mistreatment, and micromanagement, and retaliation.
Id., p. 9.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII or ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its actions. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). These reasons are addressed in more detail below. The Agency having articulated reasons for its actions, the burden thus returns to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reasons were pretextual, that is, they were not the true reason or the actions were influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
With regard to Complainant's access to the archival building being denied and her archival collection assignments being given to C1, (claim 1) CD averred that:
I sent a memo on October 6, 2009 to S1 and (another management official), requesting that the Complainant cease work with the archival collections so that preparations could be made towards the 100% inventory, establishing hierarchies for the archives, and assess the collection overall. Complainant is a Historian and she uses the archives as a research tool, but should have not access or responsibility for the archives. As a result of the October 6, 2009 memo, [CW] was regaining the purview of the archives because it is under her responsibilities as the Museum Curator. Complainant's position and CW's are very different. . . .
I recommended the Complainant's removal from the archival section because, among other things, of her inappropriate involvement and handling of/with the archives and the collection; that she denied access to the Museum Curator who should have access to the archives facility and collection; the issues with the Finding Aids created by the historian; the article regarding the use of Lysol on historic documents and archival folders, and the findings from my visit to the Park in May/June 2010. Those were the reasons for my recommendation that she be removed from the archive function. This had nothing to do with her age, race, national origin or protected activities.
ROI, Exhibit 8, pp. 1-2.
With regard to the performance evaluation (claim 2), S1 averred that Complainant did eventually receive the evaluation, but it was delayed initially due to the fact that Complainant requested a desk audit, and then due to the investigation. See ROI, Exhibit 7, p. 2. S1 further averred that "the audit kept dragging on and I should have done the evaluations based on the previous years' position description. I neglected to do it and even though I was told to hold off, I should have done it anyway." Id.
With regard to Complainant's January 31, 2010 realignment to the Southeast Regional Office (claim 3) and being told she would no longer be working on the Virgin Island Collection project (claim 4). the Regional Director (RD: White, Hispanic, 49 years old) averred that Complainant was:
following her own agenda or strategic work plan, and the items performed were not of the quality the majority of the Superintendents were expecting from a park Historian. In addition, . . . she was not pursuing the Superintendent's agendas; she was pursing her own. All of this was complicated because of the perceived favoritism by her husband (who worked for the Agency under RD). Recognizing all of this, we decided to have her report to Atlanta under . . . (another Regional Chief) . . . with her duty station in the Virgin Islands so that we could make certain that the lines of authority, communication, etc. were clearly defined for all parties involved. Additionally, one example of concern was the quality of the product that she was producing. She produced a publication in concert with academia in San Juan that was supposed to be sold in our bookstore. The publication contained grammatical errors, she used the (Agency) logo without authorization, it did not represent the Agency well, and S2 refused to sell it in their park bookstore.
ROI, Exhibit 9, p. 2, parentheses added.
Finally, with regard to Complainant being required to give full access of her computer and archives building files for archives collections to CD, and to relocate her office (claim 5), CD averred that this was necessary "because I was going to visit the Park and conduct an inventory, which required access to museum collection files stored on the Government computer. However, my travel was rescheduled because of another issue and I was unable to visit at that time." ROI, Exhibit 6, p. 2. Complainant's supervisor (S2: male, Caucasian, national origin unspecified, 60 years old) averred that:
we were concerned that there would be hostile environment if [Complainant] remained in the archives when [CD] visited so we were trying to minimize any such incident. [CD] was to the point that she was thinking about law enforcement escort but it turns out that [CD] didn't go after all because [another management official] cancelled the trip because of the hostile environment.
ROI, Exhibit 10, p. 2.
As noted above, the Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden returns to Complainant to establish, by a preponderance of the evidence, that the Agency's reasons were pretextual, that is, they were not the true reason or the actions were influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's Honor Center, 509 U.S. 502. Following a review of the record we find that Complainant has failed to meet her burden for any of the claims. Complainant has not provided any argument to establish that the Agency's explanations are untrue.
Harassment
To establish a claim of 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; (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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994).
However, with regard to the actions raised in claims 1 through 5, to the extent that complainant is alleging that these actions contributed to the hostile work environment, we find under the standards set forth in Harris, 510 U.S. 17, that such claims may not be included as part of an overall hostile work environment claim. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment for these actions is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). This leaves Complainant's remaining allegations of a hostile work environment, namely that: she was denied access to management team meetings and interpretive planning meetings; was subjected to excessive scrutiny; was micromanaged; that S2 raised his voice at a meeting; and that he rejects every suggestion, idea, and project Complainant submits. Such allegations are insufficient to state a claim of hostile work environment because Complainant has not shown that the actions complained of were either based on or involved her race, age, national origin or her EEO activity. Nor are such actions so severe or pervasive as to create a hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing that the Agency's articulated reasons for its actions were a pretext to mask intentional discrimination, or otherwise showing that the Agency's actions were based in intentional discrimination. Nor has she shown she was subjected to a hostile work environment based on her protected bases. Accordingly, we AFFIRM the FAD.
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).
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
June 28, 2012
__________________
Date
2
0120112243
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507