0120111004
05-25-2011
Cynthia Pruitt, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Cynthia Pruitt,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120111004
Hearing No. 430-2009-00110X
Agency No. 5V1C08001
DECISION
Complainant filed an appeal from the Agency’s December 2, 2010
final order concerning her equal employment opportunity (EEO) complaint
alleging 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 deems the appeal timely and accepts it pursuant to 29
C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Financial Technician at the Agency’s Resources Flight,
4th Engineering Squadron at Seymour Johnson Air Force Base in Goldsboro,
North Carolina. On May 12, 2008, Complainant filed an EEO complaint
alleging that the Agency discriminated against and subjected her to a
hostile work environment on the basis of sex (female) and in reprisal
for prior protected EEO activity when:
1. Complainant’s second-level supervisor (S2)1 assigned a co-worker’s
(CW1) convenience check duties to Complainant and told her to perform
additional duties, belonging to a vacant GS-9 position;
2. During the period of June 2007 through March 2008, S2 constantly
ignored Complainant’s requests for assistance with utility payments
and reimbursement tasks;
3. On November 20, 2007 through February 3, 2008, Complainant was denied
and harassed with regard to her request to work a Maxi-Flex schedule;
4. On February 12, 2008, Complainant was told that she was responsible
for the duties of Military Family Housing budget;
5. On February 13, 2008, during a meeting, S2 insulted Complainant in
the presence of her first-level supervisor (S1)2 and asked condescending
questions about her position description and Individual Development Plan
(IDP);
6. On February 22, 2008, S2 publicly harassed Complainant, questioned
her work ethic and ability to perform duties in the presence of CW1;
7. On March 3, 2008, S2 instructed Complainant to make illegal payments
for a tree-cutting service;
8. On February 21 and 22, 2008, and March 10, 2008, S2 used a
condescending tone while speaking to Complainant regarding her processing
TDY orders in the Defense Travel System.
Complainant amended her complaint to allege that the Agency discriminated
against her on the bases of sex (female), age (51), and in reprisal for
prior protected EEO activity when:
9. On July 1, 2008, she was not selected for a Budget Analyst position.
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing and the AJ held a hearing on November 13 and
14, 2009. On September 30, 2010, the AJ issued a decision.
Initially, the AJ assumed arguendo that Complainant had established a
prima facie case of discrimination and harassment on the alleged bases
and found that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to claim (1), Complainant
volunteered to perform some of the duties of the vacant Budget Analyst
position, and these duties were within her position description.
Regarding claim (2), S2 did not ignore Complainant's request for
assistance with utility payments and reimbursement tasks, but instead
provided Complainant training manuals and offered her several forms of
in-person training.
In regard to claim (3), November 2007, Complainant requested to change
her work schedule to an alternative Maxi-Flex schedule which would
allow her to adjust the times that she reported to work and/or ended
her work day. The AJ determined that S1 did not deny Complainant's
request, but instead advised her that she would need some time to
consider her requests since she had been tardy on several occasions.
Before S1 could respond, Complainant contacted the Union assuming that
her request for Maxi-Flex was denied. On December 21, 2007, S1 approved
Complainant's request for Maxi-Flex schedule. The AJ found, however,
that S1 notified all employees that, effective February 3, 2008, all
alternative work schedules would be temporarily suspended to accommodate
the needs of the mission since there were two vacancies in the office.
As a result, all employees were removed from Maxi-Flex schedules.
As to claim (4), Complainant was offered the opportunity to assist with
the Military Family Housing Budget, but declined the offer. After that
point, S2 sought other employees to assist with the budget and did not
require anything further from Complainant. Regarding claims (5), (6), and
(8), S2 denied asking Complainant condescending questions or questioning
her work ethic. S2 testified that he treats all employees the same.
As to claim (7), S2 stated that the payments to the tree-cutting service
were not illegal. As the approving official who could approve such
payments, he cited Agency policy as additional authority for issuing the
payments as instructed. Finally, regarding claim (9), while Complainant
subjectively felt that she was better qualified than the selectee, based
on an assessment by the selection panel, she received a lesser rating than
the selectee, and therefore was not selected for the position at issue.
The AJ determined that Complainant had presented no evidence that
the Agency’s reasons were pretextual. Accordingly, the AJ found
that Complainant had not been discriminated against or subjected to a
discriminatory hostile work environment. The Agency subsequently issued
a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ ignored evidence of
discriminatory animus in the Agency’s decision to not select her for the
Budget Analyst position. In addition, Complainant maintains that she has
presented sufficient evidence of pretext. Further, Complainant alleges
that the Agency preselected the selectee and the Agency used subjective
criteria in ranking the candidates. Accordingly, Complainant requests
that the Commission reverse the final order. The Agency requests that
the Commission affirm the final order.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd.,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
Disparate Treatment
The Commission notes that a claim of disparate treatment is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she
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 consideration was a factor in the
adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the Agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
Complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June
8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
In the instant case, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
as to claim (1), S2 testified that he assigned the convenience check
duties to Complainant because the Agency did not have such a program
when he arrived and he wanted to maintain separation of duties between
the employees performing various accounting duties. Hr’g Tr., at
468-69. Further, he assigned Complainant to take over the environmental
accounts because he was aware that she had limited availability for formal
training and this would give her the opportunity to broaden her skill set.
Id. at 470-71.
Regarding claim (2), S2 denied ignoring Complainant’s request
for assistance. S2 testified that Complainant informed him that she
learned better by reading written materials or guidance; therefore,
he provided Complainant with training materials and told her that if
she had any questions to contact him or other co-workers. Hr’g Tr.,
at 472-73. Further, S2 testified that he offered to send Complainant to
training courses, but she refused to go. Id. at 474. As to claim (3),
S1 testified that Complainant was not being regular in attendance when
she requested a Maxi-Flex schedule. Hr’g Tr., at 158. S1 suggested
that Complainant be given a three-month probationary period to allow
her to correct any attendance issues and after which, S1 would review
Complainant’s request. Id. On December 20, 2007, S1 informed
Complainant that her Maxi-Flex schedule request would be granted.
Id. at 159; ROI, at 134. The record reveals, however, that S1 informed
all employees that, effective February 3, 2007, all Maxi-Flex schedules
would be temporarily terminated due to staffing shortages. ROI, at 135.
In regard to claim (4), S2 testified that the Agency was understaffed at
that point and after reviewing Complainant’s position description, he
asked Complainant to take on the Military Family Housing budget duties.
Hr’g Tr., at 477-78. He explained that these duties were identified
in her position description and believed this opportunity would allow
Complainant to expand her knowledge base and skill set. Id. at 478.
When Complainant declined, S2 stated that he never brought it up again.
Id. at 480-81. Regarding claims (5), (6), and (8), S2 denied insulting,
publicly harassing, or asking condescending questions to Complainant.
S2 testified that he may have asked Complainant why she did something the
way that she did or made recommendations, but he has never belittled her.
Id. at 482-86. In regard to claim (7), S2 maintained that he did
not instruct Complainant to make illegal payments. S2 explained to
Complainant that while paying this vendor by check was unusual, it was
legal and cited multiple authorities authorizing the payment. Id. at
488-89. Complainant initially refused to issue the payments; therefore,
S2 thoroughly researched the situation and created multiple memoranda
to establish an audit trail. Id. at 491. Complainant eventually issued
the payments.
Finally, as to Complainant’s non-selection allegation in claim (9),
S2 testified that three applicants were interviewed for the position
by a three-person panel. Hr’g Tr., at 502. S2 affirmed that after
the interviews were completed, all three panel members had ranked the
candidates in the same order. Id. at 507. S2 noted that Complainant
did not interview well and was not prepared. Id. at 503. As a result,
Complainant was ranked last of the three candidates. Id. S1 was also
on the panel and added that the selectee was selected because he was
knowledgeable, very motivated, and willing to take on any new task or
job he was asked to do. Hr’g Tr., at 192. By contrast, S1 testified
that Complainant was not motivated, was only performing 30 percent of
the duties of her position at the time, and was not putting forth any
extra effort. Id. at 192-93.
Because the Agency has proffered legitimate, nondiscriminatory reasons for
the alleged discriminatory incidents, Complainant now bears the burden of
establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this by showing that the Agency
was motivated by a discriminatory reason. Id. (citing St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502 (1993)). Additionally, as to Complainant’s
non-selection claim, Complainant can also establish pretext by showing
that her qualifications are “plainly superior” to those of the
selectee. Bauer v. Bailar, 647 F.2d 1037,1048 (10th Cir. 1981).
In the present matter, Complainant has presented no persuasive evidence
that her qualifications were plainly superior to those of the selectee's.
The Commission notes that an employer has discretion to choose among
equally qualified candidates, so long as the selection is not based on
unlawful criteria. As to Complainant’s contention that the selectee was
preselected, the Commission notes that while evidence of pre-selection
may operate to discredit the Agency's explanation for its employment
decision, pre-selection per se does not violate Title VII when it is
based on the qualifications of the preselected individual and not on
a basis prohibited by Title VII. See Malley v. U.S. Dep't of Housing
and Urban Dev., EEOC Request No. 01973271 (Aug. 5, 1999). Here, the
Commission finds there is no evidence in the record to suggest that any
of the Agency's actions were based on discriminatory motives or that the
Agency engaged in prohibited actions. At all times, the ultimate burden
of persuasion remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reasons were not the real reasons, and
that the Agency acted on the basis of discriminatory animus. Complainant
has failed to carry this burden. Accordingly, the Commission finds that
there is substantial evidence in the record to support the AJ’s finding
that Complainant failed to establish, by a preponderance of the evidence,
that she was discriminated against with regard to the selection.
Hostile Work Environment
The Commission notes that harassment is actionable only if the incidents
to which Complainant has been subjected were “sufficiently severe
or pervasive to alter the conditions of [Complainant's] employment and
create an abusive working environment.” Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 78 (1998); Cobb v. Dep't of the Treasury, EEOC
Request No. 05970077 (Mar. 13, 1997). To establish a claim of harassment,
Complainant must show that: (1) she is a member of a statutorily protected
class and/or was engaged in prior EEO activity; (2) she was subjected to
unwelcome verbal or physical conduct related to her membership in that
class and/or her prior EEO activity; (3) the harassment complained of
was based on her membership in that class and/or her prior EEO activity;
(4) the harassment 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. See Roberts v. Dep't of Transp., EEOC Appeal
No. 01970727 (Sept. 15, 2000) (citing Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982)). Further, the harasser's conduct is to be
evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
In the instant case, the Commission finds that the AJ’s determination
that Complainant failed to establish that she was subjected to a hostile
work environment is supported by substantial evidence in the record.
Complainant has not proven that management’s actions were based on
her statutorily protected classes.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final Agency order because
the Administrative Judge’s ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by substantial evidence in the record.
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 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), at 9-18 (Nov. 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 25, 2011
Date
1 S2’s official title was Supervisory Resources Management Specialist.
2 S1’s official title was Deputy Chief, Resources Flight.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120111004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013