Shirley M. Stroman, Complainant,v.Donald L. Evans, Secretary, Department of Commerce, (Bureau of the Census), Agency.

Equal Employment Opportunity CommissionJan 28, 2003
01A22220 (E.E.O.C. Jan. 28, 2003)

01A22220

01-28-2003

Shirley M. Stroman, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, (Bureau of the Census), Agency.


Shirley M. Stroman v. Department of Commerce

01A22220

January 28, 2003

.

Shirley M. Stroman,

Complainant,

v.

Donald L. Evans,

Secretary,

Department of Commerce,

(Bureau of the Census),

Agency.

Appeal No. 01A22220

Agency No. 00-63-01055

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 in February 1999, complainant commenced a two

year assignment, with the possibility of an additional two year renewal,

as a GS-1082-12, Writer-Editor, at the agency's Software and Standards

Management Branch (SSMB) facility. Complainant's responsibilities

included the EEO Track system work on systems and project development.

On June 12, 1999, complainant received her performance evaluation which

was signed by her immediate and second line supervisors (S1: White;

S2: Caucasian). The performance evaluation indicated that complainant

met all critical elements of the position. The record reflects that on

June 17, 1999, complainant received a $400 Special Achievement Award

from S1, citing commendable performance in the development of online

user instructions for the agency's new EEO automated system.

In November 1999, complainant received an Interim Review (IR).

S1 informed complainant that she did not meet the expectations in the

two critical elements of Systems and Project Development and Software

Evaluation and Design. S1 provided complainant with the criteria for

improving her performance. On December 14, 1999, complainant detailed

her objections to the IR in a memorandum. Although neither S1 nor S2

responded directly to complainant, S1 wrote a memorandum to the file

addressing the matter.

The record also reveals that a termination letter was prepared, but

never issued because complainant tendered her resignation in a letter

dated December 20, 1999. The resignation letter originally reflected a

January 18, 2000, effective date, but a handwritten alteration changed

the date to January 1, 2000.

Complainant sought EEO counseling and subsequently filed a formal

complaint on August 9, 1999, alleging that she was discriminated against

on the basis of race (African-American) when she was subjected to a

hostile work environment from February to December 1999, when she was

forced to resign from her term appointment. At the conclusion of the

investigation, complainant 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 that the agency issue a

final decision.

In its FAD, the agency concluded that complainant established a prima

facie case of race discrimination. Specifically, the agency found that

complainant: (1) by virtue of her race, is a member of a statutorily

protected class; (2) was subjected to an adverse employment action when

she received an unsatisfactory IR; and, (3) was treated less favorably

than individuals, outside of her protected class, who were similarly

situated. The agency also concluded that complainant failed to establish

a prima facie case of hostile work environment. In particular, the agency

found that complainant did not show that any of the agency's actions were

harassing in nature, or were sufficiently severe or pervasive enough to

demonstrate a pattern of harassment.

The FAD also found that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, S1 testified

that she detected problems in complainant's performance in July or

August 1999. S1 stated that her attempts at helping complainant improve

her performance proved unsuccessful.

On appeal, complainant contends, among other things, that the agency

failed to consider the substantial evidence that was contained in her

December 14, 1999, memorandum. Complainant also contends that the agency

failed to include all of her witnesses in the formal record.

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII 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 for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the 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.

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

must be determined by looking at all the circumstances, including 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 v. Forklift Systems, 510 U.S. 17 (1993).

To establish a prima facie case of hostile environment harassment,

complainant must show the existence of four elements: (1) he is a member

of a statutorily protected class; (2) he 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; and (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. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

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).

The Commission has thoroughly examined complainant's contentions,

but finds no persuasive evidence that complainant was discriminated

against on the basis of race. The Commission agrees with the FAD that

complainant established a prima facie case of race discrimination.

We also find that the agency articulated legitimate, nondiscriminatory

reasons for its actions. In particular, we note that S1, S2, and both of

the team leaders (T1: Caucasian, T2: Caucasian) agreed that complainant's

performance was not satisfactory. In particular, S1 testified that after

noticing deficiencies in complainant's performance, she tried to offer

constructive feedback which complainant refused to accept. T1 and T2

corroborated this testimony when they testified that complainant was

unwilling to listen to constructive feedback.

Because the agency articulated legitimate, nondiscriminatory reasons

for its actions, complainant is required to show that the reasons are

a pretext for discriminatory animus. We have considered complainant's

assertions and the testimony of a member (African-American) of the

agency's EEO Office, who stated that although she was not familiar

with the performance standards for complainant's position, she was

fully satisfied with the work product complainant completed for her.

Nonetheless, we are not persuaded that complainant established that her

unsatisfactory IR was based on her race or that the relevant officials

treated more favorably similarly situated individuals not within

complainant's protected class. Accordingly, the Commission finds that

complainant failed to present sufficient evidence that more likely than

not, the agency's articulated reasons for its actions were a pretext

for discrimination.

The Commission is also not persuaded that complainant was constructively

discharged. Specifically, complainant contends that she resigned

because she was �subjected to an increasingly virile and hostile work

environment, which included a threat of �imminent' firing.� In support

of this contention, complainant claims that her White co-workers called

each other at home when there were work-related issues and never extended

the same courtesy to her. Complainant also testified that S1 and S2

would each lunch together but would ignore her.

In addition, complainant testified that when she was made aware that

there were problems with her performance, she sought guidance from S1 on

several occasions. According to complainant, S1 was hostile and refused

to clarify the information in the IR. Complainant further asserts

that during a meeting on November 29, 1999, that was attended by her,

the local union representative, S1 and S2, she received conflicting

information from S2 regarding how to improve her performance.

Under these circumstances, and the evidence presented, we are not

persuaded 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). 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

January 28, 2003

__________________

Date