01A10391
06-26-2002
Victoria Ml. Gonzalez, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.
Victoria Ml. Gonzalez v. Department of Transportation
01A10391
June 26, 2002
.
Victoria Ml. Gonzalez,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration)
Agency.
Appeal No. 01A10391
Agency No. 5-98-5138
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 during the relevant time, complainant was employed
as a Electronics Technician Instructor at the agency's FAA Academy at the
Monroney Aeronautical Center in Oklahoma. Complainant was reassigned to
that position as a result of an EEO complaint filed on July 22, 1993.
Complainant alleges that during her tenure in this new position, she
was subjected to a hostile work environment in retaliation for her prior
protected activity. By way of example, complainant states that:
she was denied proper time and resources to perform her instructor
duties when assigned a new course to teach;
her second-line supervisor (S2) told her he hoped she had not felt
like she was under a microscope because of her sick leave balance
situation and the preparation time constraints that were spelled out
in the Memorandum of Agreement (MOA) she signed;
in March 1998, another supervisor (S3) told complainant that management
officials were watching her performance;
she received a performance appraisal in February 1998 that was signed
by a former supervisor (S1); and
during the week of March 9, 1998, S2 told S3 that if complainant had
not resigned, he wanted her in the classroom teaching.
Complainant resigned from her position with the agency on March 14, 1998.
She alleges that she was constructively discharged from the agency,
based on the intolerable atmosphere created by the above-described
alleged harassment. Complainant sought EEO counseling and subsequently
filed a formal complaint on July 17, 1998.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant was neither subjected
to a hostile work environment, nor was she constructively discharged.
The agency stated, as to item one, that complainant was given
significantly more time than other instructors to prepare to teach
a class, as agreed to in a MOA between complainant and the agency.
Specifically, complainant was given more than two months to prepare
to teach an 18-hour course, while most other instructors were given
approximately three weeks. The agency further noted that complainant
failed to observe and participate during that period, thereby effectively
denying herself the resources necessary to prepare for the new course.
With respect to item two, the agency found that S2 did not make the
statement alleged, but instead complainant made the statement to
S2, wherein he assured complainant that she was not being watched.
Regarding item three, S3 acknowledges making the statement, but offers a
contextual explanation. Specifically, S3 states that when complainant
called in one day into her new course to tell S3 that she could not
continue teaching it, S3 reminded complainant of her obligations under
the MOA complainant signed. S3 explained that she merely explained to
complainant that the agency expected complainant to honor her agreement
and was going to observe whether she did indeed honor it.
As to item four, the agency states that complainant received her
performance appraisal from the appropriate individual. Although S1 was
not complainant's supervisor in February 1998, he was complainant's
supervisor for the rating period at issue. The agency states that
there was nothing improper about S1 providing complainant's evaluation.
Finally, regarding item five, S2 explained that when S3 informed him
that complainant was at work but not working on her assigned duties,
he responded that if she had not resigned, as was suspected, then she
should be informed that she was needed in the classroom, given the
educational needs of the facility. Complainant herein appeals the FAD.
On appeal, complainant contends that her rebuttal arguments were not
carefully considered by the agency. Complainant further contends that the
investigation was not thorough, in that several witnesses she describes
as key were not properly interviewed. The agency requests that we affirm
its FAD.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, and Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1)
she engaged in a protected activity; (2) the agency was aware of her
protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 26, 2000).
We note that the statutory retaliation clauses prohibit any adverse
treatment that is based on a retaliatory motive and is reasonably likely
to deter the charging party or others from engaging in protected activity.
Petty slights and trivial annoyances are not actionable, as they are
not likely to deter protected activity. More significant retaliatory
treatment, however, can be challenged regardless of the level of harm.
As the Ninth Circuit has stated, the degree of harm suffered by the
individual "goes to the issue of damages, not liability." Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination-whether based on race or some other
factor such as a motive of retaliation - is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]"). The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), complainant can demonstrate she was subjected to
harassment by showing: (1) she was subjected to harassment that was
sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and
(2) the harassment was based on her membership in a protected class.
See Enforcement Guidance on Harris v. Forklift Systems, Inc. (March 8,
1994); Davis v Department of Labor, EEOC Appeal No. 01A00981 (May 21,
2002); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
Upon review of the record, we are not persuaded by complainant's
contentions that the investigation was inadequate, and we note that
complainant did not exercise her right to an EEOC administrative hearing,
thereby depriving herself of the opportunity to cure the investigation's
alleged defects. Further, after careful consideration of the record, the
Commission concurs with the agency's determination that complainant failed
to establish a prima facie case of reprisal discrimination. Specifically,
we find that complainant did not suffer actions which independently or
in concert with one another rise to the level of actionable harassment.
None of the actions taken by the agency were so objectively offensive so
as to alter the conditions of complainant's workplace. While it is clear
from the record that complainant did not get along well with management
and that complainant's perceptions about her workload and performance
differ from management's perceptions, we decline to find that requiring
complainant to perform her job duties and to be otherwise accountable
for what she agreed to as part of the MOA is a form of harassment.
Turning to complainant's claim of constructive discharge, the central
question in a constructive discharge case is whether the employer,
through its unlawful discriminatory behavior, made the employee's working
conditions so difficult that any reasonable person in the employee's
position would feel compelled to resign. The Commission has established
three elements which a complainant must prove to substantiate a claim
of constructive discharge: (1) a reasonable person in the complainant's
position would have found the working conditions intolerable; (2) conduct
that constituted discrimination against the complainant created the
intolerable working conditions; and (3) the complainant's involuntary
resignation resulted from the intolerable working conditions. See
Walch v. Department of Justice, EEOC Request No. 05940688 (April 13,
1995). Since we have determined that the conduct which complainant
contends rendered her working conditions intolerable did not constitute
discrimination, complainant's constructive discharge claim must fail.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. 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
June 26, 2002
__________________
Date