0120101478
07-15-2010
Saundra Harris, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Saundra Harris,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120101478
Agency No. 09-07-066
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's January 22, 2010 final decision concerning
an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant was employed as an Industrial
Hygienist (Compliance Safety and Health Officer) at the Agency's
Occupational Safety and Health Administration (OSHA) in the Wichita Area's
Office alternate duty station Overland Park District Office, Kansas.
On May 5, 2009, Complainant filed the instant formal complaint. Therein,
Complainant alleged that she was discriminated against on the bases of
race (African-American), sex (female), and age (over 40) when:
1. on March 2, 2009, she was "permanently transferred to the Strat team;"
and
2. OSHA created a hostile work environment when, during meetings on March
2, 2009 and on a subsequent unspecified date, the Wichita, Kansas Area
Director (AD) allegedly verbally abused Complainant by:
a. stating that her former supervisor had advised her that he had
counseled her for not entering OSHA-1 forms for two inspections during
the week of February 2, 2009 in a timely manner;
b. stating that she had "made a lot of errors" during "an inspection at
Bracken;"
c. stating that her performance was not satisfactory;
d. telling her that she needs to perform more inspections; and
e. stating that "if anyone wanted to change teams to notify her." 1
The record reflects that for many years, Complainant had been assigned
to the Response Team and had been supervised by her former supervisor.
Complainant's former supervisor retired on February 27, 2009, and
Complainant was reassigned to the Strategic Team, commonly referred to
as the "Strat Team" and was supervised by a named Industrial Hygienist.
On June 22, 2009, the Agency issued a partial dismissal. The Agency
accepted for investigation claim 1. However, the Agency dismissed
claims 2 - 2e pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. Specifically, the Agency determined that Complainant did not
show that she suffered a personal loss or harm to a term, condition or
privilege of her employment. The Agency further found that the alleged
acts did not rise the level of harassment.
After the investigation concerning claim 1, Complainant was provided with
a copy of the report of investigation and notice of the right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
Complainant's request, the Agency issued a final decision on January 22,
2010, pursuant to 29 C.F.R. � 1614.110(b).
In its January 22, 2010 final decision, the Agency found that in regard
to claim 1, Complainant did not establish a prima facie case of race,
sex and age discrimination. The Agency further found that assuming,
arguendo, Complainant established a prima facie case of race, sex and
age discrimination, management articulated legitimate, nondiscriminatory
reasons for its actions which Complainant did not show were a pretext
for discrimination.
AD stated that upon the retirement of Complainant's former supervisor
(FS), she reassigned Complainant to the Strategic Team on March 2, 2009.
Specifically, AD stated that at the time of FS's retirement in February
2009, the named Industrial Hygienist (IH) was the only Team Leader for
both Team Kansas offices from March 2, 2009 through March 27, 2009, and
served as Team Leader for all Kansas Compliance Officers (CSHOs), one
safety and health clerk, and one safety and health assistant, during the
Team Leader vacancy. AD stated that she determined that Complainant would
benefit from IH's supervision. Specifically, AD stated that in part
because of the problems Complainant had with an inspection identified
as "the Bradken inspection," she decided that Complainant should be
supervised by IH because she "has an Industrial Hygiene background and,
as [Complainant] is an Industrial Hygienist, I believe [IH] is the best
person to coach [Complainant] and provide her with guidance regarding
her work. Since [Complainant] is assigned to Team Kansas - Overland
Park Alternate Duty Station, her work assignments will be substantially
the same on the Strategic Intervention Team and/or the Response Team."
Further, AD stated that Complainant "was not put under new standards with
her new team assignment. The difference between [Complainant's] previous
assignment and her current assignment is that she is that now reports
to [IH]. . . previously, she reported to a Lead Occupational Safety
and Health Specialist (Team Leader). At the time of [Complainant's]
reassignment all Team Kansas compliance officers (industrial hygienists,
safety and occupational health specialists and safety engineers) reported
to [IH]." AD stated that the past year, she reassigned a named male
Industrial Hygienist in Complainant's work location to a different team.
AD stated that Complainant's race, sex and age were not factors in her
determination to reassign her to the Strategic Team.
The Assistant Area Director (AAD) stated that the difference between
the Response Team and the Strategic Team "lies with the different
responsibilities of the Team Leaders. For example, the Strategic Team
Leader manages all local emphasis programs. The Response Team Leader
manages Duty Officer functions which includes in-coming complaints and
referrals. As far as the CSHOs are concerned, there are no differences.
Both teams consist of Safety and Industrial Hygiene compliance officers."
AAD further stated that all CSHOs have the same duties, responsibilities
and opportunities. AAD stated "I am not aware of any differences
between the Complainant's previous assignment and assigned duties and
her current ones. The only difference is the change of her supervisor."
Further, AAD stated that she was involved in several management
discussions with AD "where she stated to me that she was considering
moving the Complainant to my team. These conversations were held
during the time that the Bradken case file issues were going on
(January-February) when [AD], the Response Team Leader and myself all
discussed concerns regarding the case file work and sampling. As a
result of my involvement with the Bradken case file, I had reason to
believe that [AD] felt that the Complainant would be best placed under
the supervision of an Industrial Hygienist. And, due to the upcoming
retirement of the Complainant's supervisor (end of February [2009])
the timing was probably appropriate to make a reassignment."
The Regional Administrator (RA) stated that AD called him "to let me
know she had concerns about Complainant's work performance and was
therefore going to reassign her to the Strategic Team. [AD] told me
that the reason she was doing so was due to the fact that the Strategic
Team Leader is an industrial hygienist. The Complainant is also an
industrial hygienist and, therefore, the Strategic Team Leader has
the professional knowledge necessary to supervise Complainant's work.
I believe the reason [AD] decided to call me to give me notice of her
decision is because the Complainant did, in the past, pick up the phone
and call me directly when she was unhappy with a decision made by [AD]
due to her budgetary restraints."
On appeal, Complainant argues that the Agency erred finding no
discrimination concerning claim 1. Complainant further contests the
agency's partial dismissal of claims 2 - 2e. For instance, Complainant
states "I was verbally harassed at the March 2, 2009 meeting by [AD] which
illustrated to me that they were not going to follow the RA's instructions
(business as usual) with their condescending and demeaning statements.
Their duplicity is based on their managerial practices." Complainant
further argues that management made misleading statements about her
being counseled by her former supervisor for not entering OSHA-1 forms;
her unsatisfactory performance; the need to perform inspections; and .
Further, Complainant stated that the Bradken case "was a large extensive
health case performed by me without out assistance and with persistent
requests to hurry up and finish the case by [former supervisor] and
[IH] after being assigned other inspection activity [emphasis in
the original]." Complainant acknowledged she made mistakes but that
"acknowledgment of errors does not concede to inferior work, but an
educated person which can improve without advisement. It appears that
[IH] blaming other people for her errors gets her more merit by the
reviewer."
ANALYSIS AND FINDINGS
Disparate Treatment (claim 1)
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
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. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This 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 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. See 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, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions, as addressed above. Neither
during the investigation nor on appeal has Complainant produced evidence
that these proffered reasons were a pretext for unlawful discrimination
and retaliation.
Therefore, after a review of the record in its entirety, including
consideration of all statements on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the Agency's final
decision concerning claim 1 because the preponderance of the evidence
of record does not establish that discrimination occurred.
Partial Dismissal (claims 2 - 2e)
In its June 22, 2009 partial dismissal, the Agency dismissed claims 2 -
2e for failure to state a claim. Specifically, the Agency determined
that Complainant failed to show she suffered a personal loss or harm to
a term, condition or privilege of her employment. The Agency further
found that the alleged acts did not rise the level of harassment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Complainant has not alleged a personal loss or harm regarding a term,
condition or privilege of her employment. The events described
by complainant are not sufficiently severe or pervasive to state a
claim of discriminatory harassment. The agency properly dismissed the
instant complaint for failure to state a claim. Further, the alleged
incidents were not sufficiently severe or pervasive to state a claim
of discriminatory harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's final decision dismissing claims 2 - 2e for
failure to state a claim is AFFIRMED.
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
July 15, 2010
__________________
Date
1 For ease of reference, the Commission has numbered Complainant's claims
as claims 1 - 2e.
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0120101386
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013