01a44339
11-29-2005
Abeni Ogun, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Abeni Ogun v. Small Business Administration
01A44339
November 29, 2005
.
Abeni Ogun,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A44339
Agency No. 12-03-003
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 an Accountant at the Denver Finance Center, located in
Denver, Colorado. Complainant sought EEO counseling and subsequently
filed a formal complaint on December 4, 2002, alleging that she was
discriminated against and subjected to a hostile work environment on the
bases of race (Black), national origin (Nigerian), and in reprisal for
prior EEO activity. Complainant sets forth several instances of alleged
harassment from January 2000 until she left the agency in December 2002.
Specifically, complainant alleged that her coworkers often called her
names and made racial comments<1>; and her coworkers were tampering
with her computer and disconnecting her telephone. Complainant also
alleged that she was discriminated against on the bases of race and
national origin when she was not selected for Accountant positions under
vacancy announcements 02-D-1127-DB and 02D-1132-DB; and when in 2002,
she received a lower performance rating than in previous years.
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 failed to establish
a prima facie case of harassment. Specifically, the agency found
that none of the alleged incidents of harassment, if they occurred as
described by complainant, were unduly severe, nor did they unreasonably
interfere with complainant's work performance. The agency also found
that management investigated complainant's allegations of harassment,
but the allegations were never substantiated. The agency found that
the investigation did not lead to any evidence that there were racial
conflicts, as much as personality conflicts. The agency further found
that management was aware that complainant was having difficulties with
her telephone, and they did replace her phone, but they could not prove
anyone was tampering with her phone.
The agency also concluded that management articulated legitimate,
non-discriminatory reasons for complainant's non-selections, that
complainant failed to rebut. The agency found that there were three
Certificates of Eligibles for the GS-9, 11 and 12 levels for the
seven Accountant positions advertised under the vacancy announcement
02-D-1127-DB. However, the agency noted that complainant only applied for
the Grade-12 certification list of eligibles. The record reveals that
on the Grade 12 Certificate of Eligibles, a veteran applicant appeared
on the list ahead of complainant. The agency found that the selecting
officials were unable to pass over a veteran to select a non-veteran
without getting permission from Office of Personal Management (OPM).
Therefore, the agency concluded that complainant could not be considered
for the remaining selections, on the Grade 9 and Grade 11 Certificate
of Eligibles, because she only applied at the Grade 12 level.<2>
The agency noted that complainant alleged that she was discriminated
against when she was not selected for one of four Accountant positions
listed under vacancy announcement 02D-1132-DB, and that she should be
eligible under the Outstanding Scholar program. The agency found that
complainant did apply for the position, but that, as a term employee,
complainant did not have competitive status, as was called for in the
vacancy announcement. Additionally, the agency found that complainant
had never been a permanent employee; therefore, complainant did not have
competitive status and she could not be referred under Merit Promotion
rules. Consequently, complainant could not apply as an Outstanding
scholar. Therefore, the agency concluded that management was unable
to consider complainant for the 02D-1132-DB job vacancy because she was
not eligible.
The agency also concluded that complainant failed to establish a claim
when she alleged that her performance appraisal was being lowered.
Specifically, the agency found that complainant's performance element for
communication and cooperation remained "Fully Successful" during 2000,
2001, and 2002. The agency also found that complainant's 2000 performance
appraisal had an overall rating of "Fully Successful"; while in both 2001
and 2002 complainant received an overall rating of "Exceeds Successful."
Therefore, the agency concluded that complainant's performance appraisals
did not go down and her overall rating increased over time.
On appeal, complainant contends, among other things, that she was
subjected to racially motivated comments and conduct on a repeated and
on-going basis and not simply in isolated instances, as the FAD states.
Specifically, complainant contends that beginning in approximately January
2000, three of her co-workers repeatedly told her (many times every week)
to "go back to Africa," called her a "slave from Africa," stated that
"Africans sleep on trees" and come to this country to "steal our men,"and
called her an "animal who slept in a tree." Complainant also contends
that her co-workers told her that they would "frustrate her out," meaning
that they would make her working environment so intolerable that she
would leave. Complainant further contends that she verbally complained
every week to her supervisor, who indicated that he "would look into
it," but he never did. Complainant contends that after her written
complaint, her co-workers continued to harass her and call her names.
Complainant also contends that her co-workers harassed her and made her
job nearly impossible to perform by turning off and/or tampering with
her telephone and computer system. Finally, complainant contends that
management manipulated the selection process to not select her for any
of the positions.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Harassment based on national origin
National origin harassment violates Title VII when it is so severe or
pervasive that the individual being harassed reasonably finds the work
environment to be hostile or abusive. Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986). Harassment based on national origin can take on many
different forms, including ethnic slurs, workplace graffiti, or other
offensive conduct directed towards an individual's birthplace, ethnicity,
culture or foreign accent. A hostile work environment may be created by
the actions of supervisors, co-workers, or even non-employees, such as
customers or business partners. Relevant factors in evaluating whether
national origin harassment rises to the level of creating a hostile work
environment may include any of the following: (1) whether the conduct was
physically threatening or intimidating; (2) how frequently the conduct was
repeated; (3) whether the conduct was hostile and/or patently offensive;
(4) the context in which the harassment occurred; and (5) whether
management responded appropriately when it learned of the harassment.
See EEOC Compliance Manual on National Origin Discrimination, No. 925.003
(hereinafter, "Compliance Manual").
Employers and employees each play an essential role in preventing national
origin harassment. Failure by an employer to take appropriate steps to
prevent or correct harassment may contribute to employer liability for
unlawful harassment. Likewise, failure by an employee to take reasonable
steps to report harassment may preclude the employee from being able to
hold an employer responsible for the harassment. An employer is liable
for unlawful national origin harassment by co-workers or non-employees
if the employer knew or should have known about the harassment and failed
to take immediate and appropriate corrective action. The most important
step for an employer in preventing harassment is clearly communicating to
employees that harassment based on national origin will not be tolerated
and that employees who violate the prohibition against harassment will
be disciplined. In addition, an employer should have effective and
clearly communicated policies and procedures for addressing complaints of
national origin harassment and should train managers on how to identify
and respond effectively to harassment. See Compliance Manual, supra.
To prevail in a harassment claim, complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected
to unwelcome conduct; (3) the conduct complained of was based on
her protected status; (4) the conduct had the purpose or effect of
unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. McCleod v. Social
Security Administration, EEOC Appeal No. 01963810 (August 5, 1999).
In the instant complaint, complainant alleged several incidents
of alleged harassment by coworkers based on her national origin.
Complainant alleged that in October 1999, a female coworker (TK)
invited her and another coworker (AH) to spend the weekend in her house.
At first complainant agreed, but the next day complainant declined the
invitation. Complainant alleged that from that day, TK started acting
very "strange." For example, sometimes she did not answer complainant's
"good morning." Complainant alleged that three weeks after the incident,
when she declined the invitation, another female coworker (M) told
her: "Why do you come here dressed up every day..." "We just want to
be sure that you are not trying to rival with us and take our men."
Complainant alleged that since the day she declined the invitation, she
"became the enemy" of her coworkers. Complainant stated that she said
"good morning" to all of her coworkers and some would answer and some
would not. Complainant also alleged that as a part of the harassment,
M told her "if you think you are too good for our group, you will be
frustrated out of here."
Complainant further alleged that her coworkers began disrupting her
telephone on a number of occasions. Specifically, she alleged that her
telephone was unplugged and switched off from the action main line. We
find, however, that the record did not support complainant's allegations.
The record reveals that the agency's telephone system is very old and
complainant seemed to have problems using the codes in the system.
The record further indicates that complainant received a couple of new
telephones in case there was a problem with her equipment. The record
shows that others in the office also had problems with their phones
on occasion. Regarding these allegations, we conclude that complainant
has failed to establish a prima facie case of hostile work environment
harassment in that she failed to demonstrate that the complained of
conduct was based on her protected status. Specifically, we find that
complainant admitted that these incidents occurred when she declined an
invitation for a overnight party. Nothing in the record shows that any of
these alleged incidents were related to complainant's national origin.
Complainant further alleged that on many occasions (weekly basis) she
was referred to as "slave from Africa," and "she and Africans slept in
trees," and she heard comments like "all of these foreigners think they
are so smart when they come over and take our jobs." For the purpose
of our further analysis, we will assume that these incidents occurred
as complainant alleged.
We find that complainant established that she belonged to a statutorily
protected class by virtue of her national origin; she was subjected
to unwelcome conduct related to her national origin; and the conduct
was sufficiently severe and pervasive to alter the condition of
complainant's employment. However, we find that the agency acted
promptly and appropriately to prevent further harassment once complainant
brought her complaints to management. Specifically, the record reveals
that once complainant complained about racial slurs and epithets,
management conducted an investigation which included an interview of
all complainant's coworkers mentioned by her as the perpetrators of the
harassment. The record further reveals that management interviewed and
obtained statements from complainant's coworkers and other coworkers
who may have been in a position to observe or overhear complainant's
allegations. The agency's investigative report reveals that the agency's
investigation did not support complainant's harassment allegations.
While complainant brought a witness in her harassment claim; her witness
admitted that she never "witnessed anything" regarding racial comments
concerning complainant, she also stated that her only information was just
"hearsay, nothing directly."<3> The record shows that after complainant's
allegations, management provided on a regular basis, diversity and
discrimination training, covering harassment issues, to all employees.
The record also shows an e-mail, dated December 13, 2000, from complainant
to the Director of the Denver Finance Center in which she stated: "Thanks
for trying your best to make this environment a comfortable place to
work for everyone. For me [complainant], the meeting was a reinforcement
that this office does not support unfair and discriminating practices."
Complainant's testimony also reveals that management periodically
monitored and asked her about the work environment. The record shows that
management offered complainant the option to move to another division,
and that complainant refused. Generally, in harassment claims, the
agency may not involuntarily transfer or reassign complainant, the agency
should transfer or reassign the alleged harasser; however, because in
the instant case complainant cited the entire office as responsible for
the harassment, we find that the agency's offer was appropriate.
Accordingly, based on the record before us, we conclude that the agency
took prompt remedial action, and complainant has not shown that there
is a basis for imputing liability to the agency.
Disparate Treatment Claim
As a general matter, in the absence of direct evidence of discrimination,
claims of discrimination alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this analytical framework,
the complainant must first 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 reason was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). After
the agency has articulated the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual--that is, it was not the true
reason, or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253. However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450
U.S. at 253).
Even assuming arguendo that complainant established a prima facie case
of discrimination on the bases of race, national origin and retaliation,
we conclude that the agency articulated a legitimate, nondiscriminatory
reason for its action. The record reveals that complainant was not
selected for the Accountant positions listed under vacancy announcement
02D-1127-DB, because complainant was third on the Certificate of Eligibles
and there were two veterans ahead of her. The agency stated that veterans
cannot be bypassed for non-veterans. The record further reveals that
complainant was not selected for the Accountant positions listed under
vacancy announcement 02D-1132-DB, because complainant was not eligible.
Specifically, the record discloses that complainant, a term employee,
could not be considered for the position because it was announced as a
merit promotion action. The agency established that term employees are
not eligible for career status positions and are required to compete as
outside candidates.
The burden returns to complainant to establish that the agency's
explanation was a pretext for discrimination. Upon review, the Commission
finds that complainant failed to do so. In reaching this conclusion, we
note that complainant failed to rebut that the selectees were applicants
with veterans preference or demonstrate that term employees can apply
for a merit promotion action. We conclude that complainant did not show
that the agency's action was based upon discriminatory animus toward
complainant's protected classes.
Finally, the record shows that complainant's 2002 appraisal rating was
not lower than the previous year. The record shows that her summary
ratings were "satisfactory" for the first two years and the last two
years she was rated "fully successful."
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
November 29, 2005
__________________
Date
1She testifies that her coworkers called her
�slave� and told her �go back to Africa and sleep on a tree.�
2Under vacancy announcement 02D-1127-DP: a male veteran, was selected
from the Grade 12 Certificate of Eligibles; one male veteran, and a male
non-veteran, were selected from the Grade 9 Certificate of Eligibles;
two females were selected from the Competitive Eligibles List; and two
females were selected from the Noncompetitive Eligibles List.
3Complainant's witness testified that she heard comments from some of
complainant's coworkers that other coworkers made derogatory comments
towards complainant.