0120083029
04-08-2010
Morgan S. Foxx, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Morgan S. Foxx,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120083029
Agency No. LSM200704
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 22, 2008 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. Complainant alleged that the
agency discriminated against her on the bases of sex (female) when:
1. On April 27, 2007, she learned that Permit Review work assignments
were not being equitably distributed among all the employees in
the Geology/Hydrology group and she was not getting special project
assignments while males in her group are;
2. On April 18, 2007, she became aware that male employees in the
Geology/Hydrology group were shown ongoing favoritism and given
preferential treatment when a male employee was promoted to a GS-13
position without the promotion being advertised;
3. On April 18, 2007, her position description was revised to a
generic position description while the male GS-12 employee in the
Geology/Hydrology group did not have his position description revised;
4. On April 2, 2007, she learned that she was not selected for the
position of Senior Physical Scientist (GS-13) advertised under Vacancy
Announcement Number OSM-2007-037.
The record indicates that complainant amended her claim to include
reprisal for prior EEO activity as a basis of discrimination for the
following claim:
5. Complainant is continually subjected to reprisal, disparate treatment
and unequal opportunities with the most recent incident being on September
10, 2007.
a. Complainant reported to the Senior Physical Scientist when her
supervisor is not available;
b. Complainant was allowed to attend the Geographic Information Systems
User's Group meeting on July 11, 2007, but had been previously denied;
and
c. On August 28, 2007, an assignment that is typically given to a
member of the Geology Hydrology Group, was given to the Senior Physical
Scientist.
At the conclusion of the investigation, complainant received a copy of the
investigative report and was informed of her right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. Complainant requested a final agency decision.
In its FAD, the agency found that complainant failed to establish a prima
facie case as alleged regarding claims 1, 2, 3, and 5. The agency also
indicated that complainant successfully establish a prima facie case of
sex discrimination regarding her non-selection as described in claim 4.
However, the agency determined further that even assuming arguendo,
that complainant established a prima facie case of discrimination as
alleged, the agency proffered legitimate, non-discriminatory reasons for
its actions and that complainant failed to establish that the agency's
reasons were pretext for discrimination.
Work assignments and Favoritism in Promotion
Complainant generally alleges that she receives more work assignments
than her male colleagues.1 However, complainant also indicates that
one of her male colleagues receives as many or more assignments than the
complainant. The complainant acknowledged also however, that another work
group (Engineering) which is predominately male, generally receives more
assignments of a certain type due to their combined expertise in biology
and forestry. Complainant also alleges that from December 2006 through
April 2007, the assignments complainant received required more time and
work effort to process. As a result complainant argues, she is unable to
participate in other special projects. In response, the agency indicates
that from April 1, 2006 through April 30, 2007, complainant received
the same number of assignments as one male member of her work group
and fewer assignments of the other two male members of her work group
due to the complexity of the assignments given complainant. The agency
maintains that complainant was given work assignments based on complexity,
and the availability and capabilities of staff members as determined by
management based on agency needs and efficiency of operations.
Regarding complainant's claim that male employees were promoted to
vacant positions which had not been advertised, the agency indicates
that both employees named by complainant were placed in the GS-13
positions gradually based on the assumptions of duties. Consequently, the
Commission finds that complainant has failed to establish that similarly
situated individuals were treated more favorably than complainant in
the promotion to GS-13 positions.
Non-selection and Position Description
Complainant alleged that on April 2, 2007, she learned that she had
not been selected for the position of Senior Physical Scientists in
the Knoxville Field Office. Upon review, the Commission determines
that the agency established a legitimate, non-discriminatory reason
for complainant's non-selection. Specifically, the agency found the
selecting official found the selectee to be the most qualified for the
position based on his response to interview questions in combination
with the importance value assigned to each of 8 corresponding tasks
listed on the job analysis worksheet. The agency indicated further that
the selectee was the most qualified candidate to perform compliance
work associated with the National Environmental Policy Act (NEPA).
The Commission further finds that complainant fails to provide evidence
of pretext or that she has superior qualifications for the position.
Regarding complainant's claim that her position description was
revised to a "generic" position description while a male colleague's
position description was not similarly revised, the Commission finds
that complainant has failed to demonstrate how the agency's conduct
in this regard harmed a specific term or condition of her employment.
She does not indicate that she received a demotion or decrease in pay as
a result of the revision or that she suffered any other adverse action
as a result of the agency's action.
Position Description and Retaliatory Harassment
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance. Harris, 510 U.S. at 23.
In claim 5 a-c, complainant alleges that she was harassed by the agency
when she was required to report to the Senior Physical Scientist when her
supervisor was not available, allowed to attend a Geographic Information
Systems User's Group meeting despite having been previously denied.
Complainant further alleges that on August 28, 2007 an assignment that is
typically given to a member of the Geology/Hydrology Group was given to
a Senior Physical Scientist. The agency indicates that complainant's
supervisor assigned a GS-13 to act in his absence in accordance
with previously established policy. The agency also indicates that
complainant's previous request to attend the Geology/Hydrology Group
meeting was denied because complainant was working on a high priority
assignment at the time. The agency indicates that based on the effective
operation of the agency, complainant was not permitted to go to the
meeting at the time of her request. However, the record indicates and
complainant acknowledges that she was permitted to attend the meeting
on July 11, 2007. Finally, the Commission finds that complainant has
failed to demonstrate that the agency's assignment of a project to the
Senior Physical Scientist was not based on any discriminatory animus
toward complainant's protected classes.
Upon review of the record in this matter, the Commission determines
that the agency established legitimate, non-discriminatory reasons for
its actions. The Commission further finds that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 8, 2010
__________________
Date
1 The record reflects that complainant's work group consists of three
male members as well as complainant.
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0120083029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083029