01a45531
11-17-2005
Carol A. Milanese, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Carol A. Milanese v. Department of Agriculture
01A45531
November 17, 2005
.
Carol A. Milanese,<1>
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A45531
Agency No. USDACR020215
DECISION
Complainant filed an appeal with this Commission from a July 26, 2004
agency decision finding no discrimination.
In her complaint, complainant alleged that the agency discriminated
against her on the bases of sex (female) and age (D.O.B. August 4, 1941)
when she was subjected to a hostile work environment when:
1. Complainant was subjected to verbal abuse by her supervisor (the
Area Veterinarian in Charge) and by his Secretary and Office Assistant.
2. Complainant's every move was monitored.
3. Complainant was not allowed to take breaks.
4. In May 2001, complainant was not allowed to open the window.
5. In June 2001, the Area Veterinarian began parking in complainant's
parking space.
6. In July 2001, complainant was placed on a Performance Improvement
Plan (PIP) and as of March 2002, complainant had not received feedback
on the status of the PIP.
7. In January 2002, complainant received a Letter of Reprimand (LOR)
for conduct unbecoming a federal employee for sending electronic mails
to the Assistant Regional Director in which she disagreed with being
placed on a PIP.
8. As of March 2002, complainant had not been provided with a copy of
her performance appraisal.
9. In March 2002, complainant was notified by the Human Resources
Office (HRO) that she was not considered for the position of Export
Document Examiner.
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 decision by the agency. Complainant requested
that the agency issue a decision.
The record reveals that at the time of the alleged incidents, complainant
was employed as an Office Automation Assistant, GS-5, at the Animal
and Plant Health Inspection Service (APHIS), Veterinary Services (VS)
office in Albany, New York. The record also reveals that complainant was
supervised by the Area Veterinarian in Charge, but that in November 2001,
he was replaced by another supervisor (Supervisor-2).
In its decision finding no discrimination, the agency addressed each of
complainant's claims individually and concluded that complainant failed
to establish a prima facie case of discrimination based on sex and age,
noting that complainant failed to show that similarly situated individuals
outside complainant's protected bases were treated more favorably.
The agency further concluded that even if complainant established
a prima facie case on the two protected bases, the agency proffered
legitimate, nondiscriminatory reasons for its actions. Specifically,
the agency noted that complainant was placed on a PIP because of her
performance and received a LOR because her conduct was unbecoming a
federal employee. The agency also concluded that none of the alleged
discriminatory incidents were sufficiently severe or pervasive so as to
have created a hostile work environment.
Regarding claim 1, the agency stated in its decision that complainant's
supervisor was not aware that complainant was verbally abused by anyone
on his staff, that it was never his intent to imply that complainant was
incompetent and that his efforts were directed to assist complainant
toward becoming a fully functioning member of the staff. The agency
also noted that complainant's supervisor once told complainant to "put
a sock in it" because complainant was disrupting the entire staff with
her humming, complainant failed to respond to previous requests to cease
making noise, and that complainant's humming had reached a point where
the supervisor could hear the humming in the outer office. The agency
found that the humming was disruptive to the staff.
Regarding claim 2, the agency noted the supervisor's statement that
complainant spent a great deal of time on electronic mail. The agency
also noted that the supervisor stated that electronic mail was password
protected, that he would have had to go to computer maintenance personnel
to ask to see complainant's electronic mail and that he did not do so.
The agency noted that there were no witnesses who observed complainant's
supervisor opening or reading complainant's electronic mail.
Regarding claim 3, the agency stated in its decision that the supervisor
indicated that on numerous occasions, complainant would just walk out
and take breaks and disappear from the building, returning after 20 and
30 minutes, although breaks were 15 minutes and lunch was 30 minutes.
The agency further noted that generally an employee going on break would
advise another employee so that the telephone would be answered. The
agency noted that complainant acknowledged that she would take breaks and
would go outside as a way to relieve stress. The agency further noted
that the record did not establish that complainant was denied breaks.
Regarding claim 4, the agency noted in its decision that complainant's
supervisor stated that Building Management requested that all windows
remain closed because of balance issues with the heating and air
conditioning system. The agency also noted that in the preceding nine
years, management had requested that windows remain closed and that
although complainant's supervisor and other staff members had complied
with management's request, complainant was the only employee who did
not adhere to the request.
Regarding claim 5, the agency noted that the agency did not have assigned
parking spaces and that complainant's supervisor stated that he was not
aware that complainant had staked out a particular parking space but
that the supervisor began using another parking space.
Regarding claim 6, the agency stated that complainant was placed on a
PIP in order to improve her performance because she received a "does not
meet rating." The agency stated that complainant was informed that her
PIP appraisal period was from October 23, 2000, through September 23,
2001, and was extended in order to provide complainant an opportunity
to demonstrate performance above the "does not meet" level in "critical
element" areas. Specifically, the agency noted that complainant failed
to enter certificate numbers, entered the certificate numbers in the
wrong location, entered incorrect dates, applied incorrect codes,
directed a caller to an incorrect place, failed to properly address
envelopes and provide correct information to clients, failed to ensure
that documents contained an original signature, failed to handle four
original certificates presented by a client, failed to make notes on
folders that were pending a test and failed to place a seal properly over
the signature on a certificate. The agency noted that complainant's
deficiencies were cured and on January 22, 2002, complainant received
notice from the Regional Director that she had successfully completed
the PIP.
Regarding claim 7, the agency stated that complainant received the
LOR because the tone and language in various electronic mail messages
that complainant sent to the Assistant Regional Director and references
she made to her supervisor and PIP were discourteous and disrespectful.
Specifically, the agency identified a November 9, 2001 electronic mail in
which the agency noted that complainant demanded that her supervisor be
kept away from her and referred to the PIP as a "so called PIP" and that
complainant was advised that her language was inappropriate and would
not be tolerated. The agency further noted that on November 2, 2001,
complainant sent an electronic mail to the Assistant Regional Director
which was also disrespectful because complainant asserted that her
supervisor had "better not do her evaluation" and that her performance
could not be judged in "this unfair place." The agency also noted that
complainant referred to her PIP as fraudulent, and to her supervisor as
"a very small crazy human." The agency noted that in an October 25, 2001
electronic mail to the Assistant Regional Director in which complainant
stated that "[she understood] that you and your people don't care what
[the supervisor] does to me, what a waste of taxpayers money for a
veterinarian to have nothing to do but sit in his office most of the day
going through a clerk's data entry. I am going home right now, sick.
I can't take being tested every day for thirty (30) days. Having to take
a typing test in order to keep my job is cruel and abusive and makes me
throw up." The agency noted that complainant's action in taking sick
leave was abuse of her sick leave.
Regarding claim 8, the agency stated that complainant's performance
evaluation, dated June 22, 2001, was not signed by complainant's
supervisor because he was advised to change the "does not meet" rating
to "meets fully successful" and that the supervisor declined to change
the rating. The agency further stated that by letter dated January 22,
2002, the Regional Office signed a letter informing complainant of her
successful completion of the PIP and that her rating at the end of the
"opportunity period" was "fully successful."
Regarding claim 9, the agency noted that complainant was not considered
for the position because she did not include a copy of her most recent
performance evaluation and that she did not self-certify that her most
recent appraisal or current performance was at least "fully successful."
The agency further noted that the vacancy announcement opened on February
11, 2002, and closed on March 4, 2002, and that complainant could have
self-certified that her most recent appraisal or current appraisal was
"fully successful" because she had been provided with notification from
the Regional Office in the January 22, 2002 letter that her current
performance was "fully successful."
On appeal, complainant states that for a 10-year period, she worked as a
Tax Examiner for the Internal Revenue Service with an exemplary record
and received merit awards and that she never once had a problem with
peers or managers and that she had no reason to see a doctor in 12 years.
Complainant further asserts that her supervisor's statements were not even
remotely honest and that there was adequate testimony from employees to
distinguish truth from fiction regarding events that occurred to her from
October 2000 to November 2001. Complainant contends that if any agency
clients were interviewed (including slaughter horses, horse owners,
and exporters), all would say that her supervisor was a �nasty man.�
Complainant states further that it was frightening to be threatened
with job loss since she was going on 60 years, that the agency did not
believe most of what she told them and none of her actions seemed to stop
her supervisor from bothering her. Complainant indicates that when she
complained, she was accused of being disrespectful for telling the truth
about her supervisor via electronic mail and she was just begging for
someone to make her supervisor stop his actions. Complainant asserts
that she was rewarded for her electronic mail with an LOR.
Complainant also asserts that although there were no assigned spots,
her supervisor had parked exclusively in a particular space for
many years and parked in a complainant's remote space to harass her.
Complainant also contends on appeal that her supervisor's secretary was
unfriendly towards her and that she regularly reported on complainant to
the supervisor and that her supervisor would tell her what the secretary
told him and would yell at her.
On appeal, complainant denies having spent a lot of time sending
electronic mail. She notes that she occasionally sent hello messages to
her son and that she was so fearful of her supervisor's wrath that she
never would have risked playing with electronic mail. She noted that
once her supervisor came to her desk while she was sending a business
electronic mail and he started jumping around as if he had caught her
in the act. Complainant also asserts that another employee had seen
complainant's supervisor sitting at her desk and saw him in complainant's
electronic mail. Complainant further asserts that her supervisor and
his secretary went through her desk and papers at night and when she
was away from her desk.
Regarding her work performance, complainant asserts that her supervisor
made deliberate attempts to find any reason to call her incompetent
even if he needed to invent something. She asserts that many examples
of where mistakes were cited in her work were not relevant to her work
and were not erroneous. She also asserts that her supervisor would give
her work and come to her desk and set a timer and tell her to begin work
and would later take the work and try to find errors.
Concerning her failure to properly direct a customer, complainant
asserts that the customer was yelling and complaining about complainant's
supervisor and complainant told the customer that he needed to write a
letter to the agency. Complainant further asserts that the secretary
heard her remark, reported it to complainant's supervisor, and her
supervisor came running out of the office and the customer confronted
her supervisor.
Regarding the need to keep the air balanced in the office, complainant
states on appeal that she was told by other employees that her supervisor
had his windows open. Complainant states on appeal that because of dizzy
spells and nausea, she would open the window. Complainant denies her
supervisor's account that it was building maintenance policy that led
to closing of the windows. She states that her opening the window was
okay until the secretary told their supervisor that she (the secretary)
wanted the window closed.
Complainant asserts that she was told by her supervisor that she was not
allowed any breaks and she was told that she could not leave her desk
unless she came to him first. She also asserts that she was told by her
doctor that she needed to take breaks for her health and well-being.
She states that she did not abuse sick leave but that she left work
because her supervisor was causing her stress and she experienced heart
palpitations. She admits that she sometimes hummed in the office.
Regarding her not being considered for the vacancy, complainant asserts
that her resume was rejected because she did not submit an evaluation.
Complainant asserts that she had to submit her most recent evaluation or a
self-certification and that she submitted her evaluation of an excellent
rating from the Internal Revenue Service because her supervisor had
not given her an appraisal. She denies that she received the January
22, 2002 letter, stating that the actual date that she was given an
evaluation was September 3, 2002, when she signed the evaluation.<2>
Complainant also states that Supervisor 2 had told the agency not to
accept her evaluation from the Internal Revenue Service and she could
sense that Supervisor 2 did not want complainant to have the position
although complainant had been performing the job efficiently for many
months. Complainant states that Supervisor 2 had the final say on the
job selection and that Supervisor 2 selected a young man without relevant
experience who was incompetent and was fired in one year.
Complainant states that her supervisor's harassment made her physically
sick, nervous, scared, nauseous, dizzy, frightened, and caused her to
cry at her desk almost daily for a year.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive," and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
To establish a prima facie case of harassment, a complainant must show
that: (1) she belongs to 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 and (5)
some basis exists to impute liability to the employer, i.e., supervisory
employees knew or should have known of the conduct but failed to take
corrective action.
As an initial matter, the Commission notes that, because this is an
appeal from an agency decision issued without a hearing pursuant to 29
C.F.R. � 1614.110(b), the agency's decision is subject to de novo review
by the Commission. See 29 C.F.R. � 1614.405(a).
The record contains the affidavits of complainant, her supervisor,
co-workers, her performance plans, performance standards, documents
concerning complainant's performance, the PIP, and various electronic
mail. Assuming arguendo that complainant has established a prima
facie case of a hostile work environment and a prima facie case
of discrimination in claims 1 - 8, based on her age and sex, the
burden of production shifts to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). While the agency's burden
of production is not onerous, it must nevertheless provide a specific,
clear, and individualized explanation for the treatment accorded the
affected employee. Lorenzo v. Department of Defense, EEOC Request
No. 05950931 (November 6, 1997). Once the agency has articulated
such a reason, the question becomes whether the proffered explanation
was the true reason for the agency's action, or merely a pretext for
discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511
(1993). Although the burden of production may shift, the burden of
persuasion, by a preponderance of the evidence, remains at all times on
complainant. Burdine, 450 U.S. at 256. The Commission finds that the
agency has met this burden by setting forth non-discriminatory reasons
which led to each of the incidents in the nine claims. Complainant has
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were motivated by a discriminatory
animus and were a pretext for unlawful discrimination.
Regarding claim 9 in particular, we find that assuming arguendo that
complainant established a prima facie case of discrimination, we find that
the agency has articulated a legitimate nondiscriminatory reason for its
action in not considering complainant's application. We find that the
reason why complainant was not considered for the position was because
she did not provide a recent evaluation or self-certification. Even if
we accepted complainant's position that she did not receive her evaluation
until in September 2002, and therefore could not self-certify, complainant
has not shown by a preponderance of the evidence that her failure to be
considered for the position was based on prohibited discriminatory reason.
The agency's finding of no discrimination is AFFIRMED.
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 17, 2005
__________________
Date
1Complainant's name was formerly Carol
A. Padelford.
2Initially on appeal complainant indicated that the evaluation was dated
July 25, 2002, but in a letter, dated August 19, 2004, that complainant
submitted on appeal, the September 3, 2002 date was provided.