01a33983
11-29-2004
Mono M. Dennis, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Mono M. Dennis v. Department of Agriculture
01A33983
November 29, 2004
.
Mono M. Dennis,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A33983
Agency No. 000074
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a CO-07, Program Technician at the agency's Washington County
Office facility in Greenville, South Carolina. Complainant sought EEO
counseling and subsequently filed a formal complaint on September 30,
1999, alleging that she was subjected to a hostile work environment in
reprisal for prior EEO activity when:
(1) she was counseled almost daily, and given letters of reprimand as
a disciplinary measure on numerous occasions;
she was subjected to rude, unprofessional, accusatory, intimidating
and harassing comments;
she was required to produce more than the normal amount of medical
documentation for sick leave requested, and the agency failed to consider
two medical certificates signed in July 1998, by her physician as being
sufficient documentation for a sick leave request;
she resigned on October 19, 1998; and,
in July 1999, the agency failed to remit money to the court, although
it had been deducted from her pay in October 1998, for that purpose.
In its final agency decision (FAD) dated May 29, 2003, the agency
concluded that the weight of the evidence did not show that discrimination
or harassment occurred. In particular, the agency found that complainant
did not establish a prima facie case of reprisal discrimination.
The agency noted that the complainant's most recent protected activity
occurred in 1993 and there was no nexus between that protected activity
and any of the allegations in her complaint. The agency also found that
because complainant did not establish a prima facie case of reprisal
discrimination, there was no basis for her harassment claim.
On appeal, complainant contends, among other things, that there
is sufficient evidence to indicate that discrimination did occur.
The agency requests that we affirm its FAD.
Reprisal Claim
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. Social Security 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 Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
It is well-settled that nexus may be shown by evidence that the adverse
action followed the protected activity within such a period of time
and in such a manner that a retaliatory motive is inferred. Simens
v. Department of Justice, EEOC Request No. 05950113 (March 28, 1996)
(citations omitted). �Generally, the Commission has held that nexus may
be established if events occurred within one year of each other.� Patton
v. Department of the Navy, EEOC Request No. 05950124 (June 27, 1996).
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of reprisal discrimination.
Specifically, we find that complainant's prior EEO activity occurred in
1993, approximately six years prior to the instant complaint.
Hostile Work Environment Claim
Under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), complainant's claim of hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6 (March 8, 1994). A prima facie case of hostile work
environment is precluded based on our finding that complainant failed
to establish that any of the actions taken by the agency were motivated
by her prior EEO activity. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
Constructive Discharge Claim
The central question in a constructive discharge case is whether
the agency, through its unlawful discriminatory behavior, made
complainant's working conditions so difficult that any reasonable
person in complainant's position would feel compelled to resign. Irving
v. Dubuque Packing, 689 F.2d 170 (10th Cir. 1982). The Commission has
adopted a three-pronged test for establishing a constructive discharge.
Complainant must show that: (1) a reasonable person in complainant's
position would have found the working conditions intolerable; (2)
conduct which constituted prohibited discriminatory treatment created
the intolerable working conditions; and (3) complainant's involuntary
resignation resulted from the intolerable working conditions. See
Czarnecki v. Department of Defense, EEOC Appeal No. 01944348 (August
8, 1995). It is well settled that, in most instances, it takes more
than one or two incidents to create the intolerable working conditions
necessary to support a finding of constructive discharge. Nevertheless,
there have been exceptions to this principle, primarily in cases where
the conduct in question is particularly egregious. See Meyer v. Brown and
Root Construction Co., 661 F.2d 369 (5th Cir. 1981) (where the employer,
upon learning that complainant was pregnant, reassigned her from a desk
job to a warehouse job which involved heavy lifting).
In the instant case, the Commission finds that complainant has failed to
show that she was constructively discharged. Specifically, complainant
contends that she was: counseled almost daily, subjected to unprofessional
and intimidating comments, and required to produce more than the normal
documentation when requesting sick leave. We are not persuaded however,
that a reasonable person in complainant's situation would have found
the agency's conduct so intolerable that a resignation was warranted.
See Harrell v. Department of the Army, EEOC Request No. 05940652
(May 24, 1995). In reaching this conclusion, we note that the agency
required additional information from complainant's physician because her
leave request under the Family and Medical Leave Act was for a period
of six weeks.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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
November 29, 2004
__________________
Date