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