01A05656
09-11-2002
Ollie M. Darby, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Ollie M. Darby v. Department of Energy
01A05656 & 01A05657
.September 11, 2002
Ollie M. Darby,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal Nos. 01A05656
01A05657
Agency Nos. 98(134)
98(041)
DECISION
Complainant filed timely appeals from a July 19, 2000 agency final
decision finding no discrimination concerning the captioned complaints,
which she brought pursuant to Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. The Commission accepts
and consolidates these appeals. See 29 C.F.R. � 1614.405, 29 C.F.R. �
1614.606.
Complainant filed complaint # 98(041) on December 22, 1997. At the time
of the alleged discrimination, complainant, a GS-14 Systems Accountant
at the agency's Ohio Field Office, served as a Special Assistant
to the Chief Financial Officer at the agency's Ohio Field Office.
In her complaint, complainant claimed discrimination on the bases of
race (African-American) and in reprisal for prior protected activity,
as evidenced by the following incidents:
Numerous management officials and staff disseminated memoranda and
various other written statements containing false accusations and
threats against complainant;
Management conducted a secret meeting at a hotel for the purpose of
harassing complainant; and to restrict her duties, control her, and
take away her work product and staff;
Complainant's supervisor, the CFO, coerced complainant into attending
the aforementioned secret meeting, threatening her with subordination
if she did not attend;
While in attendance at the aforementioned secret meeting, management
isolated complainant from her staff by failing to include them at the
meeting, and also isolated her from employees of her own race; and
Management gave complainant an assignment knowing that she had little
help (apparently referring to preparations for the aforementioned
meeting).
Specifically, complainant claimed that the purportedly false written
statements are direct evidence of the hostility towards her by management
officials and certain staff, and that the meeting was merely a set
up to harass her and strip her of all duties and responsibilities.
Complainant also claimed that management gave her no opportunity to
prepare for this meeting, and barred all staff from the meeting who could
have provided her with support. Complainant claimed that the meeting
had no legitimate purpose, and that management singled her out at this
meeting, making her the object of intense, albeit unfounded criticism.
In complaint # 98(134), filed on September 17, 1998, complainant,
serving in an unclassified detail assignment at the time the alleged
discrimination occurred, claimed discrimination on the bases of race
(African-American), sex (female), and in reprisal for prior protected
activity, as evidenced by the following incidents:
Management issued complainant a letter of reprimand, dated March 23,
1998, for the following purported infractions:
a.) sending a package of documents by certified mail to the Manager,
rather than delivering it via normal office procedures, requiring the
Manager to personally go to the post office to pick up the package;
b.) sending a copy of the same package by facsimile to a Headquarter's
office, and misrepresenting the contents as the Manager's decision; and
c.) directly requesting work under an identified contract in violation
of a certain agency directive;
Management provided complainant with a lower performance appraisal than
she deserved for the 1997 rating period;
At the conclusion of her unclassified detail, management reassigned
complainant to the permanent position of Special Assistant to the Chief
Financial Officer (CFO) at the Ohio Field Office, rather than return her
to her original position of Team Leader of the Financial Review Group,
and then delegated her former Team Leader duties to two lower-graded
staff members, giving her no duties to perform;
Management denied complainant's requests to attend specific conferences
and meetings, to include the Blacks In Government (BIG) conference,
even though complainant was the local chapter president of BIG; and
Management denied complainant's requests for training.
Complainant claimed that the Manager's secretary refused to allow her to
deliver a package to the Manager, which consisted of her qualifications
to perform a certain assignment, as requested by Headquarters, such that
complainant opted to send the package by certified mail because this
information was �official business� and was purportedly already overdue.
Complainant claimed that the Manager incorrectly determined that she had
to go to the post office to retrieve the package, and that the cost to
the government was otherwise extremely minimal, such that the reprimand
was not warranted. Regarding the 1997 performance appraisal, complainant
claimed that the agency cannot support her �poor performance� in the
areas specified in the performance appraisal, and claimed that her work
is exemplary and that she received excellent evaluations on customer
feed-back forms, despite the agency's contention to the contrary.
Complainant also claimed that her performance was not discussed with
her, and that certain work was ignored in preparing the evaluation.
Additionally, complainant claimed that despite her exemplary work, she
received only a $300 dollar award, while those outside of her protected
classes received awards worth thousands of dollars.
Furthermore, regarding her reassignment, complainant claimed that due
to its animus towards her, the agency removed her from her Team Leader
position, and continuously reassigned her, providing her with no duties.
Complainant claimed that she was not reassigned due to downsizing, as
attested by one agency official, noting that her Team Leader position
was not eliminated, but rather ultimately filed by a white male.
Complainant also claimed that she was not reassigned due to poor
performance or behavior problems, as attested to by other management
officials, averring that the agency has provided no objective evidence
to support this contention. Additionally, complainant claimed that the
agency refused to allow her to attend meetings and conferences which were
critical to her job performance, and which she had always been allowed
to attend in the past, thereby depriving her of crucial training, but
allowed white staff members to attend. As additional evidence of animus,
complainant asserted that the agency permitted two black males to attend
the BIG conference instead of her despite her role as the local chapter
president.
After investigating both complaints, the agency issued its July 25,
2000 decision finding no discrimination. Complainant now appeals this
determination.<1>
Regarding complaint # 98(041), the agency determined that complainant
failed to establish a prima facie case of race discrimination or
reprisal regarding claim 1 because the memoranda and statements were
merely work-related documents, and did not contain false accusations
or threats against complainant. Regarding the remainder of the claims,
concerning the meeting at the hotel, the agency found that complainant
established a prima facie case of race discrimination because she was the
only staff member of the CFO required to attend this meeting. The agency
then determined that the agency provided legitimate non-discriminatory
reasons to rebut complainant's prima facie case. Specifically,
the agency found that the management had arranged for the meeting to
address documented communications problems between certain customers
and complainant's former unit, the Financial Review Group, and not to
�set up� complainant. The agency further determined that the evidence
showed that in response to this concern, the agency invited the Diversity
Programs Manager to attend the meeting along with complainant, and that
none of the witnesses who attended the meeting confirmed complainant's
view of the event. The agency then determined that complainant failed to
produce any evidence to demonstrate that the agency's reasons were a mere
pretext for race discrimination. Similarly, the agency also determined
that while complainant established a prima facie case of reprisal, it
found that she was unable to show that the agency's proffered reasons
were a mere pretext for reprisal. Accordingly, the agency concluded
that complainant failed to prove, by a preponderance of the evidence,
that discrimination on the basis of race or reprisal occurred as she
claimed in her complaint.
Regarding complaint # 98(134), the agency found that complainant
established a prima facie case of race and sex discrimination, as well
as reprisal, regarding claim 1 concerning the March 1998 reprimand.
The agency then determined that the agency articulated legitimate
non-discriminatory reasons for issuing the reprimand, finding that the
record showed that instead of merely sending the package to the Manager
through the office mail system, complainant instead demanded a meeting
with the Manager, and when denied, she mailed the package by certified
mail as an act of antagonism, thereby warranting the reprimand. Next, the
agency found that complainant provided no evidence that these reasons were
pretextual, and therefore concluded that complainant failed to prove the
claimed discrimination and reprisal by a preponderance of the evidence.
Regarding claim 2, (1997 performance appraisal), the agency found that
complainant failed to demonstrate a prima facie case of discrimination
because record evidence showed that employees of her same race and sex
received better performance ratings as compared to complainant, while
those outside of her protected classes received less favorable ratings
as compared to complainant.
In addressing claim 3, regarding complainant's reassignment, the agency
found that only one other worker had been reassigned, an African-American
male, such that complainant established a prima facie case of race,
but not sex discrimination. The agency then determined that management
proffered legitimate non-discriminatory reasons for its actions, namely,
that complainant was reassigned due to communication problems and the
state of unrest of her team during her leadership. Next, the agency
found that complainant failed to provide any evidence to show that the
agency's proffered reasons were a pretext for discrimination. Moreover,
in addressing claim 4, the agency concluded that because complainant's
reassignment was not discriminatory, her exclusion from upper level
meetings was similarly not motivated by discrimination. Regarding claim
5, concerning denial of training, the agency determined that complainant
failed to establish a prima facie case of race or sex discrimination,
finding that the career enhancing training taken by her identified
co-workers (comparatives) required no prior approval by management to
attend, and that the training that did require such approval, dealt with
generalized topics, and was not �career enhancing.�
Finally, in addressing complainant's claims on the basis of reprisal,
the agency determined that while complainant established a prima facie
case of reprisal, the agency provided legitimate non-discriminatory
reasons for all of its actions, and complainant did not provide evidence
that these reasons were a pretext for reprisal. Accordingly, the agency
concluded that complainant failed to prevail in her reprisal claim.
In conclusion, the agency found that complainant failed to prove, by
a preponderance of the evidence, that the agency discriminated against
her as claimed in the captioned complaints.
On appeal, complainant argues that the Commission should disregard the
agency's decision because it failed to adhere to the regulatory time
frames, noting that several of her EEO complaints had been dismissed for
failure to comply with these time frames. In addressing the merits of
her complaint, complainant provides a highly detailed appeal statement
elaborating on the arguments and evidence already presented in the
record, and repeats her contention that many of management's statements
are inconsistent and cannot be viewed as credible evidence.
Analysis and Findings
Complaint # 98(041)
As reflected above, with the exception of claim 1, the agency determined
that complainant established a prima facie case of discrimination
regarding the remainder of her claims in this complaint, but was unable
to prove that the agency's proffered reasons were a mere pretext for
race discrimination or reprisal.
The established 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 instances. Where, as here, the agency
has articulated a legitimate, nondiscriminatory reasons for the actions
at issue, the factual inquiry can proceed directly to the ultimate issue
of whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1999).
In this case, we conclude that complainant failed to present evidence
that more likely than not, management's articulated reasons for its
actions in claims 2, 3, 4, and 5 were a pretext for race discrimination
or reprisal. In reaching this conclusion, we concur with the agency that
the meeting at issue was not �secret,� and that it was called for the
legitimate purpose of addressing certain concerns outlined in a report.
In particular, we find the fact that the agency employed the use of a
facilitator at this meeting, and invited the Diversity Program Manager
to attend to allay complainant's apprehension, belies her claims of race
discrimination and reprisal. With respect to claim 3, we find that the
record confirms that complainant's supervisor advised her that refusal
to attend the meeting could be grounds for an insubordination charge.
However, given that the meeting had a legitimate purpose, and that the
report covered many areas of major concerns which complainant could best
address, we find that her supervisor had a permissible, business-related
reasons for mandating complainant's attendance. Regarding claim 5,
we find that the record shows that the only preparation required of the
participants was to read the report, and that complainant had sufficient
prior notice of the meeting to do so.
Finally, although the agency found that complainant failed to establish a
prima facie case of race discrimination regarding claim 1, we find that
even assuming that she had done so, the agency proffered legitimate,
and well-supported, non-discriminatory reasons, e.g., that the
memoranda and statements were work-related documents. In this regard,
notwithstanding complainant's credibility arguments, we note that
pertinent affidavit evidence further establishes that these documents
pertained to work-related matters which involved complainant, and were
not intended to slander complainant. We further find that similar to
the other claims in this complaint, complainant presents no evidence,
beyond speculation, of pretext regarding claim 1.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision finding
that complainant failed to prove race discrimination or reprisal by a
preponderance of the evidence concerning complaint # 98(041).
Complaint # 98(134)
As reflected above, with the exception of race and sex discrimination
concerning claim 2, and sex discrimination concerning claim 3, the agency
determined that complainant otherwise established a prima facie case of
race, sex, and reprisal regarding all of the claims in this complaint,
and that the agency provided legitimate non-discriminatory reasons for
its actions regarding each claim. Accordingly, as previously noted,
it is appropriate for the factual inquiry to proceed directly to the
ultimate issue of whether complainant has shown by a preponderance of
the evidence that the agency's actions were motivated by discrimination.
See Aikens, supra. and Hernandez, supra.
In this case, we conclude that complainant failed to present evidence
that more likely than not, management's articulated reasons for its
actions in claims raised by complainant in this complaint were a pretext
for race discrimination or reprisal.
Regarding claim 1, we find that the record shows that because complainant
designated the package for the Manager's �eyes only,� the Manager had to
personally pick it up at the post office. Moreover, the record also
confirms the agency's view that this method of delivery was clearly
inappropriate and was undertaken as an act of antagonism. Furthermore,
we note that the letter of reprimand contains two other infractions,
not addressed by the agency or complainant in her case, but which we find
further support the legitimacy of disciplining complainant in this manner.
Regarding claims 2 and 3, assuming arguendo that complainant demonstrated
a prima facie case on all alleged bases, we find that the record
corroborates the agency's proffered reason, namely that complainant's
performance appraisal and reassignments were based on her performance
and behavior problems, especially as they concern communication and
inter-personal skills. In fact, although the record demonstrates that
complainant has outstanding technical skills as an accountant and auditor,
we find that the record is also replete with instances of complainant's
confrontational and disruptive means of dealing with the significant
disparity in her view of the work of the office, and that of the rest
of the staff and managers. While complainant argues that �downsizing�
is not one of the reasons she was reassigned, as testified by one of
the managers, we nonetheless find that the record clearly supports the
reason proffered by the other two responsible management officials in
this matter, e.g., that it was due to complainant's performance and
behavior problems.
Finally, regarding claims 4 and 5, we find that the record confirms
that the agency's decisions on which staff members to authorize for
various training, conferences, and meetings during the relevant period
are a reflection of budget concerns, and a sense of fairness in terms
of alternating these opportunities equally among the staff. Regarding
the BIG conference in particular, we note that complainant provides no
evidence that she requested that the agency authorize her attendance,
or that the agency otherwise denied this request.
Additionally, we find that complainant presents insufficient evidence to
prove, by a preponderance of the evidence, that any of the aforementioned
reasons regarding the claims in this complaint were pretextual, or that
the agency's actions were otherwise motivated by unlawful discriminatory
or retaliatory animus due to her protected bases.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision finding
that complainant failed to prove discrimination on the bases of race or
sex, or reprisal, by a preponderance of the evidence concerning complaint
# 98(134).
In conclusion, for the reasons set forth above, based on our de novo
review of this record, we AFFIRM the agency's decision finding no
discrimination concerning complaint #98(041) and complaint #98(134).
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
September 11, 2002
__________________
Date
1According to Commission records, complainant filed several other EEO
complaints concerning incidents which occurred at the same facility during
the same approximate time frame. Some of these complaints are the subject
of appeals currently pending at the Commission: EEOC Appeal Nos. 01A05655
and 01A05658. Furthermore, we note that Commission records also reflect
that complainant raised additional related claims in other complaints
which have previously been adjudicated, and we note that complainant
references her pertinent EEO complaints in the comprehensive chronology
of the alleged incidents of discrimination she provides for review.
Therefore, in rendering a decision on the instant appeal, as well as the
referenced pending appeals, the Commission shall view each claim in the
context of the entire set of circumstances set forth by complainant.