0120102746
10-14-2010
Hattie D. Strong, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Hattie D. Strong,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120102746
Agency No. P-2005-0277; P-2007-0056
DECISION
On June 16, 2010, Complainant filed an appeal from the Agency's May 13, 2010, 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 in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended. 29 U.S.C. � 621 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 decision.
ISSUE PRESENTED
Whether the Agency's final decision was correct in finding that Complainant was not subjected to unlawful discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Correctional Treatment Specialist, GS-11, at the Agency's Correctional Facility in Memphis, Tennessee. Complainant's supervisor (S1) issued her a performance appraisal for the period of April 1, 2006, to March 31, 2007. S1 gave her an overall rating of "exceeds" for her performance. However, Complainant thought she deserved an overall rating of "outstanding" for her performance appraisal. S1 noted that the "exceeds" rating given to Complainant was based on her work ethic, expertise, and knowledge of her caseload.
Subsequently, in September or October 2006, the Warden (African-American, Male, age 45) accused Complainant of losing her radio. After the Warden gave Complainant the chance to respond, he issued her a letter of reprimand and proposed that she be suspended for two days for inattention to duty. Subsequently, however, the Warden decided not to suspend Complainant.
On October 11, 2006, the Unit Secretary received a phone call from Complainant's daughter asking if Complainant was in the office. The Unit Secretary did not forward the call directly to Complainant, but, instead, later reported to her that her daughter had left her a message. Complainant felt that the Unit Secretary subjected her to a hostile environment by not passing the call immediately on to her. Subsequently, the Associate Warden and S1 told Complainant that the Unit Secretary was not at fault for not forwarding the call to her. After Complainant wrote a memorandum to the Warden regarding the October 11 incident, the Associate Warden and S1 told Complainant that she should have not have contacted the Warden. In November 2006, Complainant received her performance appraisal for the April 2005 to March 2006 period. Complainant claimed she should have received the performance appraisal in April 2006.
On June 13, 2005 and November 20, 2006, Complainant filed EEO complaints alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (51), parental status, and reprisal for prior protected EEO activity when:
1. she received an unfavorable annual performance evaluation for the April 1, 2006, to March 31, 2007 rating period;1
2. management did not issue her a performance evaluation for the 2006 evaluation year;
3. she did not receive any step increases in 2006;2
4. the acting Unit Manager (S1) subjected her to harassment in the form of unwarranted criticism and [issued her a letter of reprimand for losing her radio];3
5. on October 11, 2006, she was subjected to offensive remarks made by management [when the Unit Secretary did not immediately forward her daughter's phone call to her]; and
6. her yearly performance evaluation for April 1, 2005 to March 31, 2006, was delayed preventing her from applying for the position of Unit Manager.4
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, the Agency found that it had articulated legitimate nondiscriminatory reasons for its actions. In particular, the Agency found that Complainant received her reprimand letter because she lost her radio. Pertaining to Complainant's allegation that she did not receive her performance appraisal on time, the Agency noted that multiple appraisals were late and not just Complainant's. In regards to Complainant's claim that she received an unfavorable performance evaluation, the Agency found that it based the evaluation on Complainant's performance logs. The Agency noted that Complainant's performance logs, among other things, referred to Complainant's ability to work with a team and keep up with rosters. Lastly, the Agency found no evidence of pretext or that any of its actions were motivated by discriminatory animus.
CONTENTIONS ON APPEAL
Complainant has not filed a brief on appeal.
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").
Reprisal
To establish a prima facie case of reprisal discrimination, Complainant must show that (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). To demonstrate a nexus based on temporal proximity, the period of time separating the events must be very close. See Clark County School District v. Breeden, 532 U.S. 268 (2001) (in order to establish sufficient evidence of causality, the time period between the employer's initial knowledge of the prior protected activity and the adverse employment action must be "very close" -- a three month time period was not proximate enough to establish a causal nexus). Here, the record reflects that Complainant's prior protected activity pertained to her contact with an EEO counselor on June 23, 2004, and for a complaint filed the same year. However, Complainant's allegations regarding the claims in this instant matter pertain to allegations that occurred in 2006. Since a significant amount of time passed between Complainant's prior protected activity and the claims in this instant matter, we find that Complainant cannot establish a nexus between her prior protected activity and the adverse treatment. Therefore, we find that Complainant cannot establish a prima face case of reprisal.
Parental Status Claim (5)
In regards to claim (5), the Commission has no jurisdiction over claims of parental status discrimination. The Commission only has authority over federal sector complaints of discrimination on the bases of race, color, religion, sex, national origin, age, disability or reprisal. See 29 C.F.R. ��1614.106(a); Lee v. United States Postal Service, EEOC Appeal No. 01965341 (September 4, 1998).
Disparate Treatment Claims (1), (2), (4), and (6)
To establish a prima facie case of disparate treatment on the bases of race, age, or sex Complainant must show that (1) she was a member of a protected class; (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) she was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Department of Defense, EEOC Appeal No. 0120070257 (April 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (January 9, 1998); Trejo v. Social Security Administration, EEOC Appeal No. 0120093260 (October 22, 2009).
Upon review, we find that Complainant has failed to establish a prima facie case of discrimination based on race, age, and sex. In this regard, Complainant has failed to indentify a similarly situated individual outside of her protected class that was treated differently. Specifically, Complainant has not identified a coworker that (1) had received a more favorable evaluation for the April 1, 2006, to March 31, 2007 rating period; (2) was not disciplined for losing a radio; and (3) did not have a performance appraisal delayed in 2006.
Harassment
To establish a claim of harassment a Complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994).
With respect to claim (4), we also find that Complainant failed to show that S1's actions, i.e., hollering about a transfer order, and commenting to Complainant about her lunch breaks, punctuality, and work product, were based on her race, sex or age or were sufficiently severe or pervasive to rise to the level of illegal harassment or created a hostile work environment. Moreover, Complainant has not shown that the alleged 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. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant was not subjected to unlawful discrimination as alleged.
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 (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
___10/14/10_______________
Date
1 The Agency's final decision noted that Complainant's claim here pertained to her annual performance evaluation for the April 1, 2004, to March 31, 2005 rating period. However, in the Agency's Report of Investigation, Complainant noted the claim pertained to the April 1, 2006 to the March 31, 2007 rating period.
2 Complainant withdrew this claim; therefore, we will not address it on appeal.
3 Regarding this claim, Complainant also testified that S1 "hollered" at her concerning a transfer order, and stated that he commented to her about her lunch breaks, punctuality, and work product.
4 At the time Complainant filed a complaint containing claim (2), she had not yet received her 2006 performance evaluation. The evaluation was received in November 2006; therefore, Complainant, who subsequently filed a second complaint containing claim (6), now alleges that the evaluation was delayed.
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0120102746
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102746