0120090364
02-27-2012
Gwendolyn M. Ashby, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Gwendolyn M. Ashby,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120090364
Agency No. DO-06-0331-F
DECISION
On October 18, 2008, Complainant timely filed an appeal from the
Agency’s September 18, 2008, final decision 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The
Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS in part and REVERSES
in part the Agency's final decision.
ISSUES PRESENTED
The issues presented on appeal are: 1) whether Complainant established
that she was subjected to discrimination based on reprisal when she was
issued a Letter of Reprimand (LOR) and was disqualified for the Lead
Telephone Operator position; and 2) whether the comments made by the
Telecommunications Manager (M1) concerning Complainant’s EEO complaints
constituted a per se violation of Title VII.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Telephone Operator, GS-7, at the Agency’s Departmental Offices
in Washington, D.C. December 21, 2007, Report of Investigation (ROI),
at 2. The record reflects that Complainant was promoted to the GS-7
grade level on January 22, 2006. Id. at 12.
On July 7, 2006, Complainant received a telephone call from a caller who
was attempting to locate a person who was not on the three directories
that Complainant had in her possession. Id. at 9-11. Complainant
contacted the Shift Leader on his telephone line, feeling that he
could help the caller. Id. The Shift Leader instructed Complainant
to come to his desk. Id. Afterward, the Shift Leader and Complainant
started loudly arguing about which one of them was to take the telephone
call. Id. Complainant asserted that the Shift Leader raised his voice
and yelled at her to get out of his face. Id. Complainant asserted that
she felt threatened by the Shift Leader’s tone of voice. Id. The Shift
Leader asserted that Complainant pointed her finger and shouted at him,
saying, “You are not taking the call!” Id. The Shift Leader further
asserted that Complainant kept on saying that she was going to “take
care of” him and “get” him. Id. M1 asserted that Complainant started
yelling at her as well. A coworker (C1) witnessed and heard the incident.
On July 11, 2006, a meeting was convened with M1, an individual from Labor
Relations, the Shift Leader, and Complainant to discuss the July 7, 2006,
incident. Id. at 10. After unsuccessfully discussing the incident with
Complainant, M1 issued Complainant a LOR on July 18, 2006. March 14, 2007,
ROI, at 64. M1, in the LOR, noted that on July 7, 2006, Complainant became
loud and argumentative with the Shift Leader, and pointed her finger at
him in a way that caused him to feel threatened. Id. M1, in the LOR,
further noted that Complainant also yelled at her after she attempted
to resolve the dispute. M1 further noted:
You immediately started yelling and saying things that were directed at
me. . . .You told me that you were not afraid of me and that you would
take care of me too. You then started toward me and [C1] moved to try
to restrain you.
Id.
Thereafter, on August 21, 2006, the Agency opened Vacancy Announcement
No. 06-DO-313 for the position of Lead Telephone Operator,
GS-08. Complainant applied for the position, along with 30 other
applicants. December 21, 2007, ROI, at 12-13. The Vacancy Announcement
noted that applicants must have been a GS-7 for 52 weeks in order to
be considered for the position. Id. On September 12, 2006, the Human
Resources (HR) Specialist communicated to Complainant that she was not
eligible for the position because she had not been in her grade for a
minimum of 52 weeks as required. Id.
Thereafter, on December 8, 2006, Complainant reportedly overheard M1
mention her name to another employee. Id. at 14. Complainant then informed
M1 that she overheard the conversation and she did not appreciate M1
saying her name. Id. In response, M1 informed Complainant that she was
the supervisor and could mention any employee’s name. Id. at 14-15. M1
testified that she said to Complainant the following:
I told Complainant that we have settled our differences, but instead she
continues to file complaints. I became upset and told her should could
repeat this to anyone she pleased.
Id. at 117.
On October 13, 2006, Complainant filed an EEO complaint, which was
subsequently amended, alleging that the Agency discriminated against her
on the basis of reprisal for prior protected EEO activity under Title
VII and the ADEA1 when:
1. on July 7, 2006, the Shift Leader yelled at her regarding a business
call, which resulted in her receiving a LOR;
2. on September 15, 2006, she was notified that she had not been
selected for the Lead Operator position, GS-8, advertised under Vacancy
Announcement No. 06-DO-313; and
3. on December 8, 2006, M1 talked negatively about her and disclosed
confidential information regarding her prior EEO activity to a coworker.
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). When
Complainant did not request a hearing within the time frame provided in
29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
Specifically, with respect to claims 1 and 2, the Agency noted that
Complainant failed to establish a prima facie case of retaliation. The
Agency also noted that it articulated legitimate, nondiscriminatory
reasons for its actions. The Agency noted that the July 7, 2006,
incident involving Complainant and the Shift Leader resulted in an office
disruption. The Agency also noted that Complainant did not meet the
time-in-grade requirement for the Lead Operator position. Regarding claim
3, the Agency noted that M1’s comment to Complainant that they should
have settled their differences rather than file another EEO complaint was
inappropriate. The Agency noted that employers are prohibited from trying
to dissuade employees from pursuing claims through the EEO process. The
Agency noted, however, that M1’s comment did not have the effect of
dissuading Complainant from filing an EEO complaint.
CONTENTIONS ON APPEAL
Complainant does not submit a statement or brief on appeal. The Agency
requests that we affirm its final decision.
ANALYSIS AND FINDINGS
Standard of Review
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
Chap 9, § VI.A. (Nov. 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 (Claims 1 and 2)
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). She
must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed
with in this case with respect to Complainant's claims, however,
because the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Board 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 Prods., Inc., 530 U.S. 133, 148 (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, EEOC Request No. 05950842;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We find that assuming, arguendo, that Complainant established a prima
facie case of discrimination based on reprisal, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
with respect to claim 1, M1 noted that on July 7, 2006, Complainant
was out of control and yelling at the top of her lungs, telling the
Shift Leader that she was going to take care of him. March 14, 2007,
ROI, at 64. M1 noted that she attempted to calm Complainant down,
but Complainant started yelling at her, too. Id. M1 further noted that
Complainant told her that she would take care of her, too, and started
to move toward her, but was restrained by C1. Id. Regarding claim 2,
the HR Specialist explained that Complainant was not eligible for the
position because she had not been in her GS-7 grade for a minimum of
fifty-two weeks as required by Agency regulations. December 21, 2007,
ROI, at 12. The HR Specialist explained that Complainant was promoted
to the GS-7 level on January 22, 2006, and would not be eligible for a
GS-8 level position until January 2007. Id.
The burden now shifts to Complainant to establish that the Agency's
nondiscriminatory reasons were pretext for discrimination. Burdine, at
254. In an attempt to show pretext, Complainant states that the Shift
Leader yelled at her, but did not receive a LOR also. Complainant states
that M1’s and the Shift Leader’s version of events on July 7, 2006,
is incorrect. Complainant also states that M1 verbally told her that
she would never be considered for the Lead Telephone Operator position.
Notwithstanding her contentions, Complainant does not dispute that she
got into a verbal altercation with the Shift Leader on July 7, 2006. We
note that C1 in describing the incident testified:
I heard loud voices. . . . I don’t know what started the altercation
between [the Shift Leader] and [Complainant], but this was totally out
of character [for] both parties.
ROI, March 14, 2007, at 60.
We also note that there is no dispute that Complainant had not been a GS-7
for 52 weeks as required under the Agency’s regulations. Therefore,
with respect to claims 1 and 2, we find that Complainant has failed to
establish that the Agency’s reasons were pretext for discrimination
based on reprisal.
Claim 3
The Commission has held that the actions of a manager may be per se
reprisal where he or she intimidates an employee and interferes with
the employee's EEO activity in any manner. See Binseel v. Dep’t of
the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep’t
of the Army, EEOC Request No. 05920778 (June 4, 1993). We find that
M1’s comments to complainant constituted a per se violation of Title
VII and the Commission's regulations by interfering with his rights to
pursue remedies for violations of equal employment opportunity laws. 42
U.S.C. §2000e-3(a); 29 C.F.R. § 1614.101(b); see Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
In particular, the Agency notes, in a September 19, 2008, memorandum,
that M1 made inappropriate comments to Complainant about her EEO
complaints. The Agency notes:
M1 made comments to Complainant that indicated M1 may not fully understand
her obligations to avoid statements that may have a chilling effect upon
the willingness of individuals to speak out against discrimination or to
participate in the EEOC’s administrative process or other employment
discrimination proceedings.
Agency’s Administrative File Index, Tab 6, at 1.
The Agency further requested that M1 receive training on retaliation
as it relates to protected EEO activity in the September 19, 2008,
memorandum. Id. We note that Complainant named M1 as the responsible
management official in her previous EEO complaints, and M1 does not
dispute that she made comments to Complainant regarding the filings
of her EEO complaints. We concur with the Agency’s September 19,
2008, memorandum, and find M1’s comments to Complainant pertaining to
the failure to settle her complaints to be inappropriate. Further, we
note that M1 testified that Complainant had refused to accept offered
opportunities to settle her EEO complaints. December 21, 2007, ROI,
at 117, 160.
Upon review, we find the comments made by the M1 to Complainant
constituted a per se violation of Title VII, because such comments
are likely to have a chilling effect and deter employees from full
exercise of their EEO rights.2 29 C.F.R. § 1614.101(b). We note that
an Agency has a continuing duty to promote the full realization of equal
employment opportunity in its policies and practices in every aspect of
agency personnel matters. 29 C.F.R. § 1614.102. Agencies must, among
other things, insure that its managers promote and enforce a vigorous
equal employment opportunity program. Pruette v. U.S. Postal Serv.,
Appeal No. 01951567 (Mar. 3, 1998).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM in part
and REVERSE in part the Agency’s final decision.
ORDER
The Agency is ordered to take the following actions:
1. Within 60 days of the date this decision becomes final, the
Agency shall conduct a supplemental investigation to determine
whether Complainant is entitled to compensatory damages incurred
as a result of the Agency's discriminatory action. The Agency shall
allow complainant to present evidence in support of his compensatory
damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369
(January 5, 1993). Complainant shall cooperate with the Agency in this
regard. The Agency shall issue a final decision addressing the issues
of compensatory damages no later than 60 days after the Agency's receipt
of all information. The Agency shall submit a copy of the final decision
to the Compliance Officer at the address set forth herein.
2. Within 180 days of the date this decision becomes final, the Agency
shall provide training to the responsible management official identified
as M1 regarding the obligation not to restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
under, the Federal equal employment opportunity laws.
3. Within 60 days of the date this decision becomes final, the Agency
shall consider taking disciplinary action against the management official
identified as M1 for being responsible for the discrimination perpetrated
against Complainant. The Commission does not consider training to be
a disciplinary action. The Agency shall report its decision to the
Commission and specify what, if any, action was taken. If the Agency
decides not to take disciplinary action, it shall set forth the reasons
for its decision not to impose discipline.
POSTING ORDER (G0610)
The Agency is ordered to post at its Departmental Offices facility in
Washington, D.C. copies of the attached notice. Copies of the notice,
after being signed by the Agency's duly authorized representative,
shall be posted by the Agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty
(60) consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The Agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled “Implementation of the Commission's Decision,” within ten
(10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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
February 27, 2012
Date
1 The record reflects that Complainant filed two previous EEO Complainants
on December 21, 2004, and on August 23, 2005, based on sex, race, age,
and reprisal, naming M1 as a Responsible Management Official.
2 While, as the Agency noted, such comments may not have deterred
Complainant from pursuing her EEO complaint, they may well have deterred
EEO activity by other employees who became aware of the comments.
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0120090364
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090364