0120071038
10-15-2007
Gwendolyn H. King, Complainant, v. Robert J. Battista, Chairman, National Labor Relations Board, Agency.
Gwendolyn H. King,
Complainant,
v.
Robert J. Battista,
Chairman,
National Labor Relations Board,
Agency.
Appeal No. 0120071038
Agency Nos. MEM-97-15, MEM-97-20, MEM-98-12, MEM-98-13, MEM-98-14, MEM-99-02, MEM-99-04, MEM-01-05, MEM-02-07, MEM-02-12, MEM-03-01, MEM-03-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's November 8, 2006 final decision concerning twelve captioned complaints 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 record reflects that complainant filed twelve formal complaints, which were consolidated at various times during the processing of the complaints. In her formal complaints, complainant claimed that from July 1996 to February 2003, the agency discriminated against her on the bases of race (African-American) and in reprisal for prior protected activity concerning her work assignments, appraisals, performance improvement plans, non-selections, denial of training, suspension, harassment relating to various terms and conditions of her employment, and removal from agency employment.1
The agency conducted its investigation, and pursuant to complainant's request, forwarded the complaints to an EEOC Administrative Judge (AJ) for a hearing. The agency thereafter filed a Motion to Dismiss the subject complaints on the grounds that complainant failed to cooperate, pursuant to 29 C.F.R. � 1614.107(a)(7). Specifically, the agency argued that complainant failed to provide the requested discovery and failed to appear at a deposition scheduled for January 21, 2004, or to contact the agency to advise that she would not be attending.
On January 26, 2004, the AJ issued an Order to Show Cause why the complaints should not be dismissed. By letter dated February 17, 2004, complainant requested an indefinite postponement "until I can try to find some normalcy." Subsequently, the AJ issued a decision on March 18, 2004, dismissing complainant's complaints pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate and remanded the matter for a final agency decision. The agency issued a final order adopting the AJ's decision, and dismissed the captioned complaints for failure to cooperate.
On appeal, we found that the AJ properly dismissed complainant's complaint for failure to comply with the AJ's Show Cause Order. We found, however, that because the agency had fully completed its investigations of the complaints, the agency acted improperly in dismissing the complaints without a final decision on the merits. We found that the record reflected that the investigations were complete, and the agency possessed sufficient information to adjudicate on the subject complaints. As such, we found that the agency should have issued a decision on the merits of the complaints. We reversed the final order, and remanded the case to the agency to issue a decision on the merits of the case. King v. National Labor Relations Board, EEOC Appeal No. 01A45154 (January 23, 2006), req. for recon. denied, EEOC Request No. 05A60498 (September 5, 2006).
On November 8, 2006, the agency issued the instant final decision finding no discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
In the instant case, there is no evidence that the allegedly harassing events were premised on the bases alleged in complainant's complaints. In addition, the allegedly harassing events are not so severe or pervasive as to alter the terms and conditions of complainant's employment. Rather, the incidents appear to be the type of events that typically occur in the workplace as the result o formal interpersonal conflicts or performance problems.
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant has adduced no evidence that she was subjected to discrimination based on various matters concerning her employment and removed from her position as a result of the agency's discriminatory animus. The agency articulated legitimate, nondiscriminatory reasons for its action which complainant failed to show were a pretext for discrimination.
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
October 15, 2007
__________________
Date
1 Complainant appealed her removal to the Merit Systems Protection Board which upheld the removal by decision dated May 31, 2005 (MSPB Docket No. AT-0432-03-0874-I-3).
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0120071038
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071038