01994148
10-30-2001
Sylvia Hall-Broden, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sylvia Hall-Broden v. Veterans Affairs
01994148
10-30-01
.
Sylvia Hall-Broden,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01994148
Agency No. 98-2958
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her formal 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 reason, the final agency
decision is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven
by preponderant evidence that she was harassed on the bases of sex
(female) and reprisal (prior EEO activity) when she was monitored and
singled out by her supervisor regarding her lunch break, her supervisor
breached the confidentially of a mediation session in which the two of
them participated, and she was given an unfair rating on an appraisal
for promotion.
BACKGROUND
At the time of this complaint, complainant was employed by the agency
as Supervisor, Income Verification Section, Customer Services Division,
GS-11. On December 11, 1997, her supervisor approached her to discuss
complainant's lunch breaks. During this discussion, the supervisor
pointed out that complainant had returned from lunch late on November 25,
December 2, December 3, and December 10, 1997. Complainant stated that
this is evidence that she was being watched, monitored, and singled out
by her supervisor regarding her lunch breaks. Complainant's supervisor
stated that she was not monitoring complainant's lunch breaks, but rather
was not able to find complainant on those dates and thus approached her to
discuss her lunch break. During this discussion, complainant's supervisor
informed complainant that it was complainant's responsibility to adhere
to the agency's policy regarding lunch breaks, and if she needed extra
time for lunch, she should have requested it, and it probably would
have been granted. Complainant's supervisor stated further that other
employees were counseled on the agency's lunch break policy as well.
On January 12, 1998, complainant, her supervisor, the Staff Director,
and complainant's attorney attended a mediation session regarding
another EEO complaint filed by complainant.<1> During the session,
complainant stated that she had a stomach disorder that she attributed
to work-related stress. At the conclusion of the session, those
in attendance signed an agreement which indicated that everything
discussed therein would remain confidential. The next day complainant
received a memorandum from her supervisor suggesting that complainant
complete the Notice of Occupational Disease and Claim Compensation form.
Complainant believed that it was inappropriate for her supervisor to
send her the form because it was her understanding that the issues
discussed at the mediation session would not be discussed further.
Complainant's supervisor stated that she suggested that complainant fill
out the form because all employees who claimed a work-related injury,
which is what she considered complainant's stomach illness to be in
light of the discussion that took place during the mediation session,
should fill out such a form. Complainant's supervisor stated further
that the memorandum, only one of which existed as it was not copied,
was hand-carried to and discussed with complainant in private so the
confidentiality of the mediation's contents was not breached.
On March 31, 1998, complainant's supervisor completed a supervisory
appraisal for promotion concerning complainant. In that appraisal,
complainant's supervisor rated complainant a �zero� in the category of
�skill in applying principles, practices, and techniques of education
training sufficient to develop, revise, and present a full range of
employment development courses.� On April 8, 1998, complainant applied
for the position of Employee Development Specialist (EDS). She stated
that her supervisor rated her a �zero� to keep complainant from getting
another position or getting a position that had mobility potential.
Complainant noted that in her previous evaluation for the rating period
that preceded the supervisory appraisal was �outstanding.� Complainant's
supervisor stated that complainant received only a �passing� evaluation
in her previous appraisal, and notwithstanding that, the performance
appraisal of employees for the year of performance does not equal a
supervisor's appraisal for promotion. Complainant's supervisor further
stated that she rated complainant a �zero� in the above-referenced
category because that category was not directly applicable to
complainant's job duties. Complainant admitted that when she inquired
about the supervisor appraisal for promotion, her supervisor told her
that the ratings were due to differences in her current position and
the EDS position.
Believing she had been the victim of discrimination regarding the
above-referenced employment actions, complainant initiated contact with
an EEO counselor. When the counseling session failed to resolve the
matter informally, complainant filed a formal complaint on February 26,
1996, in which she alleged that she had been discriminated against on the
above-referenced bases. The complaint was accepted for investigation.
At the conclusion of the investigation, complainant was informed of her
right to elect either a hearing before an EEOC Administrative Judge (AJ)
or an immediate final agency decision. When complainant failed to make
an election, the agency issued a final agency decision in which it found
no discrimination. It is from that decision that complainant appeals.
ANALYSIS AND FINDINGS
Harassment
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).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a claim of hostile environment harassment,
a complainant must show that: (1) s/he is a member of a statutorily
protected class; (2)s/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.
Complainant alleged that she was harassed when her supervisor monitored
her lunch breaks, discussed the confidential contents of a mediation
session, and rated her lower than she should have on the supervisory
appraisal for promotion. However, she presented no evidence that any
of these acts, if true, were based on sex or reprisal. For that reason,
the Commission finds that she failed to establish a claim of harassment.
Disparate Treatment
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. Worcester 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(s) 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.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Here, we find that the agency stated legitimate, nondiscriminatory reasons
for its actions. The complainant's supervisor stated that she did not
monitor complainant's work breaks, but counseled complainant regarding
the agency's lunch break policy when she could not find the complainant
when the supervisor needed to have a business related discussion with
complainant. The supervisor further stated that she did not divulge any
of the confidentiality agreements of the mediation session, but simply
advised complainant, in private, to fill out the Notice of Occupational
Disease and Claim Compensation form in light of what appeared to be
a Worker's Compensation claim. Finally, the supervisor stated that
complainant's supervisory performance appraisal for promotion was not the
same as her performance appraisal for the year because the two appraisals
served different purposes and concerned different skills.
Because the agency has proffered legitimate, nondiscriminatory reasons for
the alleged discriminatory events, complainant now bears the burden of
establishing that the agency's stated reasons were merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,
complainant has failed to meet that burden. Complainant submitted no
evidence which suggests that the agency's stated reasons are a pretext
to mask unlawful discrimination. For that reason, her claim of being
treated differently based on race and reprisal fails.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response thereto, and arguments and
evidence not specifically addressed in this decision, we hereby AFFIRM
the final agency decision.
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
___10-30-01_______________
Date
1That complaint, filed on December 2, 1996, concerned a nonpromotion.