01A24301_r
09-23-2003
Barbara J. Burgo, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Barbara J. Burgo v. Department of Homeland Security
01A24301
September 23, 2003
.
Barbara J. Burgo,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A24301
Agency No. 99-014
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.<1>
The record reveals that during the relevant time, complainant was
deployed to the Disaster Field Office as Information and Planning Section
Chief at the agency's Essex Junction, Vermont facility from August
12, 1998 to September 25, 1998.<2> Complainant replaced an outgoing
section chief who she had worked with during a previous disaster.
The Disaster Field Office is the local administrative and operations
headquarters for disaster response. Complainant was scheduled to teach
"situation reports" at a two-day regional training course in Maynard,
Massachusetts on August 25, 1998, but was required to remain at the
Essex office. After her release from the Essex office on September 25,
1998, complainant was deployed to St. Croix, Virgin Islands from October
5, 1998 to October 23, 1998. Complainant sought EEO counseling and
subsequently filed a formal complaint on December 30, 1998, alleging
that she was harassed and discriminated against on the bases of race
(African-American), color (black), national origin (Cape Verde), sex
(female), and in reprisal for prior EEO activity when:
(1) Management officials made disparaging remarks to complainant's
subordinate employees that undermined her authority;
An employee was given access to complainant's time and attendance
records and accused complainant of time violations when complainant
was not allowed access or review of the employee's records that she
supervised for accuracy or approval;
Employees accused complainant of discrimination when she requested
their cooperation and appropriate work performance;
Management failed to transition in complainant, denied her office
equipment, and caused her to be late for a planned meeting;
Complainant was denied signature authority and logistical staff support,
and her written requests were ignored;
Complainant was denied a teacher training opportunity in Maynard,
Massachusetts, in order to provide similarly situated staff the
opportunity to attend and participate in training; and
Complainant was subjected to early release from her assignment; not
provided the opportunity to work immediately following her assignment;
and issued an unjust and negative performance evaluation while similarly
situated employees did not receive a negative performance evaluation
and which evaluation management allegedly failed to correct even after
the employees who accused complainant of time-reporting violations had
misrepresented her own time records.
In investigative affidavits, management acknowledged that complainant was
not transitioned well into her Essex assignment. The former section chief
stated that complainant arrived a day late for the Essex assignment,
which "substantially reduced any amount of time that I would have
to work with her." The former section chief further stated that he
was overwhelmed with duties during the final week of his assignment,
including completing a report, creating a disaster internet site,
signing time sheets, overseeing performance appraisals, and collecting
official records, and could not give complainant the level of transition
assistance he desired. However, management responded that complainant was
provided appropriate office equipment and office space. An employee who
worked under complainant's supervisor stated that it was her custom to
keep a personal journal of work activities. She stated that she kept a
personal log of complainant's lunch hours, but stated that complainant's
allegation that she "had access to her time and attendance records
is absolutely not true." The employee further stated that at no time
did she hear management make disparaging remarks about complainant.
The employee also stated that on August 14, 1998, complainant was 15 to
20 minutes late for a meeting, but nonchalantly reacted when she informed
her that the meeting was already in progress. Management likewise stated
that complainant missed an important meeting that was advertised on an
employee bulletin board and was late for other meetings in Essex.
Regarding the alleged disparaging comments about complainant, management
stated that the previous section chief did state that he did not
want to work with complainant, but management did not otherwise make
disparaging remarks about her. Another employee under the supervision
of complainant stated that he never heard the previous section chief make
statements that undermined complainant's authority, but did hear him say
there were personality clashes and he could not work with complainant.
The employee also stated that complainant missed the first staff meeting
without giving advance notification of her absence.
Regarding claim 3, the agency responded that a visually impaired employee
claimed that complainant made insensitive remarks toward him and filed
an EEO complaint on that matter. With respect to the complainant's
claim that the agency failed to give her signature authority, the agency
responded that complainant was not given signature authority because the
disaster relief was winding down and time and attendance records were
best handled by the Federal Coordinating Officer. The agency further
responded that logistical support refused to help complainant with an
assignment because they were already working on a "rush" assignment.
Regarding training opportunity in Maynard, Massachusetts, a management
official stated in his affidavit that complainant was originally scheduled
to teach a documentation branch course on August 24, 1998, but the former
Essex section chief was asked to teach the course instead because it was
determined that it was more useful to have complainant's subordinates go
to the course because they had not received any training on this subject,
whereas complainant had recently attended similar training for one week.
The official also stated that if complainant had left the Essex office
to teach the course while her employees also attended, there would have
been no one left in the Essex office.
Regarding claim 7, another management official responded that within
ten days of completing her Essex assignment, complainant was deployed
to St. Crois, Virgin Islands, where she worked from October 5 - 23,
1998. The agency further stated that management submitted an unsigned
"satisfactory" performance appraisal to complainant. The agency
maintains that the rating was justified because complainant failed to
address volatile interpersonal problems in her section. The record
contains a Notification of Personal Action document that states that
effective January 17, 1999, complainant was employed in a full-time
temporary position as a Community Partnership Specialist with the Bureau
of the Census. The agency maintains that under personnel regulations,
complainant's full-time status with the Bureau of the Census precluded
complainant from being placed on further assignments with the Federal
Emergency Management Agency. Finally, the record contains documentation
stating that on January 24, 1999, complainant changed her work status to
"not available."
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
initially requested a hearing with an Administrative Judge but later
requested that the agency issue a final decision. In its final decision,
the agency found no discrimination.
As a preliminary matter, we note that we review the decision on an appeal
from a final agency decision de novo. 29 C.F.R. 1614.405(a). Accordingly,
we have carefully reviewed the entire record before us in our attempt to
discern whether a preponderance of the evidence warrants a modification
of the agency's remedial ruling. See 29 C.F.R. 1614.405(a).
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, as here, the agency has articulated
a legitimate, nondiscriminatory reason for its actions. In such cases,
the inquiry shifts from whether the complainant has established a prima
facie case to whether she has demonstrated by a preponderance of the
evidence that the agency's reasons for its actions merely were a pretext
for discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 714-717 (1983).
Complainant also alleges that she was subjected to a hostile work
environment and harassment. To establish a prima facie case of hostile
environment harassment, a complainant must show that: (1) she is a member
of a statutorily protected class; (2) she 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.
While the record contains ample evidence to conclude that there were
significant personality conflicts and tensions between complainant and
co-workers at the Essex office, complainant did not meet her burden to
prove, by a preponderance of the evidence, that the agency acted with
animus toward complainant's race, color, sex, national origin, or in
reprisal for prior EEO activity. Consequently, we find that complainant
failed to establish that she was subjected to unlawful discrimination or
harassment on the alleged protected bases. 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 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
_September 23, 2003_________________
Date
1The complaint herein was originally filed
against the Federal Emergency Management Agency which is now a component
of the Department of Homeland Security.
2The record reveals that complainant was classified as a Disaster
Assistance Employee, a temporary employee hired to respond to disasters
on an intermittent basis.