0120133373
05-12-2015
Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120133373
Agency No. NPS-12-0251
DECISION
Complainant filed an appeal from the Agency's August 23, 2013 final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Seasonal Park Ranger at the Agency's Cuyahoga Valley National Park facility in Brecksville, Ohio.
On March 7, 2012, Complainant contacted an EEO Counselor. On May 15, 2012, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment and discrimination on the bases of race (African-American) and reprisal, when:
1. on May 31, 2012, she was terminated from her Student Employee Program (STEP) position as a Park Ranger (Interpretation);
2. in April of 2012, she was questioned about money missing from a cash drawer safe;
3. on March 5, 2012, she was verbally reprimanded by her supervisor; and
4. on March 7, 2012, she was held to a higher standard with regard to her time and attendance than other similarly situated co-workers.
The pertinent record reflects that Complainant is an African-American student, who was enrolled in college at the time of the alleged incidents. The Agency appointed Complainant as a seasonal Park Ranger (Interpretative), GS-0025-5, through the Student Temporary Employment Program (STEP). The actions at issue pertain to her last appointment, which was for the term November 2011-May 31, 2012.
Complainant named her third line supervisor as the primary responsible management official. The named official was the Interpretive Operations Supervisor (Caucasian woman) (S3). Complainant did not name her immediate first-line supervisor, Park Ranger (African-American woman) (S1), her second-line supervisor, who was the Supervisory Park Ranger (Interpretive) (Caucasian male) (S2) or the Superintendent (African-American male) (Superintendent).
Management was aware of Complainant's race. The record is unclear as to whether management was fully aware of any EEO activity by Complainant. Although Complainant had not filed any prior formal EEO complaints, the record does show that Complainant sought EEO counseling in March of 2012 with regard to management's delay with regard to her report date for her reappointment in 2011. Management was aware of her challenging the delay in her reappointment.
Claim One - Termination
The STEP program provides jobs for students while they are enrolled in school. S2 advised Complainant that her appointment would end on May 31, 2012, the month she graduated from college. S2 also advised Complainant that the Agency had no money to continue her in the new Pathways Program, even if she were to enroll in graduate school. Complainant, however, believed she was being "let go" because of her race. Complainant alleged that a Caucasian Step/Pathways appointee did not have to submit paperwork to prove she was a student, but Complainant was required to do so.
Complainant also stated that S2 offered her another position in the summer camp program, but when she contacted the supervisor who oversaw the program, she was told he already had a full staff. Complainant further stated that S2 later told her he would find her a position in the summer program despite the apparent lack of funding, but she told him she was declining the position because she had enough of the confusion and miscommunication regarding the budget and availability of positions.
Complainant further stated that S3 stated that she had been involved in an alleged altercation in 2011, but denies that there was any altercation. Complainant stated that she does not know why S3 said they had an altercation since they seldom spoke. Complainant believes that S3 thought Complainant went over her head in 2011 to get her job reinstated and that Complainant had not gone through the proper chain of command. Complainant believed that S3 made disparaging remarks about Complainant. However, S3 denied making demeaning comments about Complainant's character to the Superintendent or anyone else.
Claim Two - Questioned about missing money
Sometime in April 2012, a money bag "went missing" from the Canal Visitor's Center safe. Thirteen Park Rangers, including Complainant, had the code and access to the safe. Complainant's supervisor (S1) stated that Complainant was the last one to have worked that Sunday. S1 averred that she called all of the employees together. All of rangers were questioned. S1 averred that she followed the protocol and questioned all of the rangers. When S1 told S2 about the missing money, S2 inquired as to whether Complainant was questioned. Complainant maintains that her name was the only one S2 mentioned when he asked S1 about the investigation. The money bag had been misplaced by someone else and was relocated. Complainant was not subjected to any adverse action.
Claim Three - Verbally reprimanded
On March 5, 2012, Complainant averred that she was not feeling well and arrived late to work. Complainant told S2 that she had been ill. She states that S2 verbally reprimanded her and asked Complainant for a leave slip.
S2 denies that he reprimanded Complainant. He acknowledged that he had a conversation with Complainant, but he viewed it as a low level conversation, based on his own observations. In his discussion with Complainant, S2 also told Complainant that he was aware that she had left early on that Friday afternoon. Complainant denied that she left early and told him that she "was at the CVC Center doing prep work." Complainant then conceded to S2 that she left early after she and S3 "had words."
Claim Four - Held to higher standard regarding her time and attendance
In an email that she copied to her immediate supervisor, Complainant informed S2 that he should enforce all time and attendance rules equally. Complainant noted that a Caucasian coworker routinely took 1 and 1/2 hour lunches. Complainant sent S2 an email saying that Complainant did not believe it was fair that she was asked to fill out leave papers because he [S2] did not generally ask anyone to do paperwork for a 15 minute issue. She noted that S2 did not offer her makeup time, as he would normally do to an employee for being late or leaving early. Report of Investigation (ROI), page 151.
S2 denied that Complainant was subjected to any different standards, but he noted that he disciplined employees one-on-one, so Complainant might not know of others whom he disciplined or counseled. He averred that he looked into the matter about the Caucasian employee taking a longer lunch. S2 called Complainant's claims false when she stated that an identified Caucasian employee could fail to report whenever he felt like it and nothing was done to him.
Reprisal
Complainant's only EEO activity is the instant complaint and its antecedent EEO counseling in March 2012. S1 served as the EEO Counselor, as part of her collateral duties. S1 testified that she does not believe the Complainant's EEO activity was the basis for any of the 2012 conduct at issue, stating "no one knew she file the EEO complaint." S1 stated that she did not share any EEO information S2 or any other management official.
S2 stated that he and S1 did discuss "the conflict of interest" of S1 "serving as both supervisor and EEO counselor." Due to this fact, he believed someone else should serve as Complainant's EEO counselor. He testified that he shared his expectations that if any bigger issues arose, that Complainant's supervisor was to let him know.
The Agency accepted the complaint with regard to the four above referenced claims. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency Decision
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that the Complainant "has proven that the conduct in Claims 1-3 'occurred,' at least in some fashion." The Agency reasoned, however, that Complainant does not prove that she was subjected to different standards than others." The Agency found that "the only ways in which she asserts she was treated differently are in connection with leave/tardiness and being required to provide documentation of school enrollment." The Agency reasoned that Complainant's uncorroborated assertions that a named Caucasian employee was routinely an hour late are not persuasive since Complainant did not produce specific proof thereof, or that management was aware of any, even had she proven them." The Agency also found that Complainant failed to prove that a Caucasian female was not required to provide documentation of her continued school enrollment.
The Agency found that Complainant failed to demonstrate that she was subjected to unlawful conduct on account of her race or reprisal for her prior EEO activity. The Agency reasoned that management was not aware of her EEO activity.
Next, the Agency found that it articulated legitimate reasons for its actions. With regard to claim 1 (the termination), the Agency cited budget considerations that did not permit the Agency to extend Complainant's appointment, which was scheduled to end after her graduation in May 2012. The Agency also stated that it offered Complainant an opportunity to continue employment, which offer Complainant declined. As to claim two (questioning her), the Agency found all employees ("Black and not Black") with recent access to the safe were questioned. With regard to claim 3 (reprisal), the Agency found that S2 "was simply apprising [Complainant] of her obligations with respect to his time and attendance expectations." With regard to claim 4 (disparate treatment regarding attendance and documentation), the Agency reasoned that Complainant did not prove that S2 failed to impose the same requirements on others.
This appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a 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. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Disparate Treatment
To prevail in a Title VII disparate treatment claim such as this, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). We find that the record supports the determination that Complainant did not show that she was subjected to discrimination because of her race or treated differently than other similarly situated individuals outside of her protected group or due to any prior EEO activity.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. A complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated a legitimate, non-discriminatory reason for each of its actions. The deciding official averred that management did not reappoint her because she graduated from college in May 2012, which was also the end date of her appointment. In addition, he stated that there were budgetary constraints at that time, and Complainant declined another offer that was made to her. She was questioned, along with everyone else, because protocol required that the employees with access be questioned. S2 observed that Complainant had been late in arriving and raised the matter with her. S2 said that he required all employees to adhere to the leave and attendance rules and was not aware of anyone whom had not been disciplined for a similar violation. S2 averred that he approached each person individually and that Complainant was not aware of the actions he took. Complainant acknowledged that she was late in reporting. Consequently, we find that the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant did not provide evidence to show that the Agency's reasons for its actions were a pretext for discrimination. The record shows, at best, that there was a miscommunication between management and Complainant, but the record does not show that this was due to racial or retaliatory animus. Moreover, the record does not show that the named responsible management official took any adverse actions against Complainant. It is undisputed that all park rangers were questioned regarding the missing money, regardless of race or prior EEO activity. There is no evidence that the supervisor imposed a different time and attendance standard because of Complainant's race or prior EEO activity.
Harassment / Hostile Work Environment
In this case, Complainant claims that she was subjected to harassment because of her race and reprisal. 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. Thus, not all claims of harassment are actionable. Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In the instant case, we find that Complainant did not meet her burden because, as already discussed above, there is simply no evidence that the actions taken were motivated by discriminatory or retaliatory animus. Moreover, many of Complainant's allegations concern isolated incidents that, even if proven true, are not sufficient to state a hostile or abusive work environment claim.
For all of these reasons, we find that Complainant failed to prove harassment or unlawful discrimination.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 12, 2015
__________________
Date
2
0120133373
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120133373