0120070663
09-18-2008
Hilary E. Sadler, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Hilary E. Sadler,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120070663
Agency No. 05-55-00051
DECISION
Complainant filed an appeal from the agency's September 28, 2006 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.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Senior Import Policy Analyst, GS-1101-13 and later, as a Senior
International Trade Compliance Specialist, a GS-1801-13, with the
International Trade Administration (ITA), Import Administration (IA),
Office of Operations, Office of China/Non-Market Economies (China/NME) at
the agency's facility in Washington, DC. On March 2, 2005, complainant
filed an EEO complaint alleging that she was discriminated against on
the bases of race (African-American) and in reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Office of Chief Counsel (OCC) Attorney A1 and subordinate
attorneys A2 and A3 disallowed complainant to use complainant's legal
title "Esquire," because she is not a Department of Commerce attorney;
2. A1 completely rewrites complainant's policy documents and refuses
to concur with complainant's decisions unless all of A1's revisions are
incorporated in the documents;
3. A1's and subordinate attorney's revisions have caused continuous
and unreasonable delay in concurrence and return of complainant's
documents, and office delay in issuing several decisions in non-compliance
with statutory deadlines;
4. Import Administration (IA) Attorneys A1, A4 and A2 show
contemptible attitudes toward complainant in the following ways:
a. A1 used enlarged and capital fonts in electronic mail
messages;
b. A1 made rude margin notes and sent rude handwritten
notes to complainant;
c. A1 degraded complainant's character in legal staff
meetings; and
d. A1 refused to work with complainant during the concurrence
process;
5. Complainant was transferred to the Office of China and Non-Market
Economies (China/NME) on August 8, 2004, but she had no knowledge of
the transfer until mid-January 2005. Complainant provides the following
information to support this claim:
a. Complainant was forced to transfer to this office when
all other employees applied for positions in the same office;
b. Complainant did not receive paperwork on transfer until
mid-January 2005, when Office of Human Resource Management
informed complainant. Management never informed complainant of
the personnel action completion;
c. IA office administration constantly requested
complainant's resume for one week to justify qualifications for
the realigned position; however, the other sunset analyst has
never been approached for her resume;
d. Complainant did not transfer her offices on June 23,
2005, while she was first notified of the transfer to her new
offices and job duties in March 2004;
e. Complainant's technical office status was under the
supervision of S7, not S3;
f. Complainant's job series changed from 1101 (general
business and industry) to 1801 (investigator);
g. Complainant received no pay increase for her new role as
sunset review "Team Leader" for the new analysts and supervisors
as they learn the statutory regulations and draft decisions
under sunset review;
h. Complainant was assigned to a sunset program manager
and office director who have no sunset review experience.
Complainant must train them in sunset review and they will
evaluate complainant's sunset review performance;
i. Complainant was assigned to operations and continued her
sunset policy duties. Only two to three analysts per office are
assigned to perform sunset review duties. Complainant was not
compensated for a duty that similarly situated employees do not
have to perform. Other analysts have the same rank without the
additional sunset review duty. Complainant is the only analyst
performing sunset duties in her cluster of two offices although
she receives the same pay as other similarly situated analysts
not performing sunset duties;
6. On December 23 and 30, 2004, complainant was harassed when
Senior Import Policy Analyst C1, who has no supervisory authority over
complainant, ordered complainant to submit information found on a current
weekly report while C1 was on vacation. The request was from S1, Policy
Communications, who never contacted complainant;
7. In October 2004, S1 placed interrogatory responses to
complainant's complaint on the network drive for at least 50 people,
if not the entire IA to see. Complainant's name was the file name;
8. IA Office of Policy Senior Management S2, M1, and S3 denied
her a continued Office of Policy position. Complainant provides the
following information pertaining to this claim:
a. The agency has had 25 Office of Policy vacancies since
November 2004;
b. The agency advertised a new vacancy announcement for
four Import Policy Analyst positions ending January 19, 2005;
c. Complainant was not offered an interview until she
mentioned that she had been on the certification list for a few
weeks;
d. M2 exhibited contempt toward complainant while setting
the interview time;
9. IA Office of Policy Supervisor S3 reduced complainant's training
when she was only given a free ticket to the two day, 2005 International
Trade Law Update Conference while others received a severely reduced
government rate, and had the opportunity to attend the full conference:
a. Complainant received no other relevant training outside
the office, except for the free International Trade Law Update
classes and two free International Trade Administration's (ITA)
Leadership Program. Other analysts under S3's direction are given
ample training opportunities, including training outside of job
duties;
10. In March 2004, although S3 told complainant that she would write a
new policy and procedures manual with the other half of the sunset team;
Senior Management Officials requested that OCC A1 and A5 write a manual
and train employees designated to take on Sunset Review duties;
11. Complainant has not received a Performance Plan. Office Director
S4 informed complainant that since May 2005, 100 percent of complainant's
duties would be considered "OTHER DUTIES AS ASSIGNED;"
12. Complainant has no real supervisory structure. Complainant
reports to a sunset coordinator, a program manager, and to an office
director, despite being at a professional level that requires independent
performance. Complainant must also perform tasks as directed by four
outside Sunset Coordinators, as well as S3;
13. After four requests, S5 and S4 took over two months to approve
complainant's request for 5 days annual leave from June to September
2005:
a. On June 24, 2005, S5 and S4 approved complainant's annual
leave requests for July 1, 2005. Complainant's original request
for this date was April 18, 2005;
b. In a previous meeting, S5 suggested that complainant
take a two-week vacation in August; however, when complainant
requested one week vacation, S5 did not respond for at least
a week, discussed the leave with S4 in front of complainant,
and asked complainant if she had any work due the following
week. Complainant has assignments due the third and fourth week of
each month and wonders if she will ever be authorized a two-week
vacation like other analysts. Complainant is concerned that she
will not be able to use complainant's "use-or-lose" leave when
she would like and not be approved to carry over any forfeited
leave if the opportunity arises;
14. S4 is attempting to force complainant to use compensatory time
earned for personal leave even though complainant has over two weeks of
projected use-or-lose annual leave in 2005;
15. In early May 2005, complainant requested two no cost ITA
Leadership School classes scheduled for June 2005. After several
requests, S4 and S5 approved only one class the day before the class
started;
16. S4 informed complainant that she, S7 and M3 decided that S6
should be Sunset Coordinator in complainant's office and the cluster of
two offices, even though no one in the office has any knowledge regarding
sunset review critical performance;
17. Until late June 2005, S4 directed complainant to report to S6,
who is on a temporary assignment in the office, and to report to S5 for
time and attendance and unrelated sunset matters. S5 has been included
in all sunset activities, has been included in all of S6's written
communications since June 20, 2005; on June 24, 2005, S4 directed
complainant to include S5 and complainant on all sunset emails, and
since then, S6 includes S5 in all email interaction between them;
18. In mid-June 2005, S6 informed complainant that she was not
performing any sunset duties except to task complainant and "review for
substance." S6 has no prior sunset experience. Complainant must train
S6 on sunset procedures, policies and correspondence. Although S6 is
frequently out of the office once or twice every week, complainant must
report to S6 with total inclusion of S4 and S5;
19. S6 sends complainant task lists every week and withholds
information from complainant until she is tasked. S6 however informs
S5 of all sunset activity because he reminds complainant of tasks S6
may or may not have told complainant about;
20. S6 subjects complainant to constant, daily harassment through
emails, while S5 advises complainant "to go easy on S6 because she is
sick;"
21. Complainant requested S6's guidance on June 27 and 28, 2005, but
received no response. When she called S6 on June 30, 2005, S6 informed
complainant that she had been in the office all week;
22. S4 harasses complainant at every opportunity:
a. S4 rolled her eyes twice to C2 in response to
complainant's question at her introductory meeting with outside
supervisors led by M4 in April 2005;
b. S4 harassed complainant surrounding complainant's office
move from room 2837 to room 4416 in May and June 2005. S4 first
forbade complainant to use the moving services, approved the use
of the moving services approximately two weeks later, then forbade
complainant to have direct contact with the moving service;
c. S4 raised her voice at complainant in a June 24, 2005
meeting, and continued to raise her voice after complainant's
request to refrain from such behavior;
d. On June 24, 2005, S4 and S5 called complainant into
S4's office to reprimand1 complainant for sending out an email
to outside parties and foreign governments without approval;
e. S4 directed complainant to write a training manual on
sunset review and train everyone in the office even though she
informed complainant that she has no authority to make decisions
on sunset procedures and review;
f. S4 denied complainant business cards due to lack of
funds even though complainant's duties entail meeting outside
parties and everyone else in the office has business cards;
23. On November 17, 2005, S4 came to complainant's office and
asked complainant if she was at the all hands meeting with a new agency
official. At that time, S4 said she wanted to make sure that the whole
office was there, and noted that she did not see complainant, and then
immediately left the office; and
24. The Office of Civil Rights did not complete her EEO Investigation
or issue an agency decision for a previous EEO complaint filed on July 5,
2002.2
By letter dated November 22, 2005, the agency dismissed claim (24)
pursuant to 29 C.F.R. � 1614.107(a)(8) on the grounds that this claim
alleged dissatisfaction with the processing of a prior complaint.
By letter dated April 17, 2006, the agency notified complainant of
the conclusion of the investigation of her complaint. Complainant was
provided with a copy of the report of investigation and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with complainant's request, the agency issued a final
decision, dated September 28, 2006, pursuant to 29 C.F.R. � 1614.110(b).
The agency found that complainant failed to prove that she was subjected
to discrimination as alleged.
In its final decision, the agency affirmed the dismissal of claim (24)
pursuant to the grounds cited in its letter of November 22, 2005.
The agency found that with respect to claims (1) through (4), that
complainant was asked by A1 and others not to use the term "Esquire" not
because A1 or any of the other attorneys sought to harass complainant,
but because they felt it was improper inasmuch as complainant did not
work as an attorney for the agency. A1 acknowledged that she made edits
to complainant's work and when complainant failed to make the changes
she requested, A1 grew frustrated and did indicate that frustration
with enlarged fonts and all capitalizations in electronic mail messages.
The agency noted that a reasonable person would not consider the actions
described in claim (1) through (4) to be anything other than the normal
review process for complainant's work. The agency found that complainant
was not harassed as alleged based on her race or prior EEO activity.
With respect to claim (5) through (23), the agency found that complainant
claimed to have been harassed in connection with Import Administration's
office reorganization and the events that occurred as the agency
realigned supervisory personnel, redistributed work assignments and
filled specific vacancies. The agency observed that complainant viewed
her reassignment to the operations group (together with all of the agency
actions incident to that reassignment) as discriminatory, but the agency
found that complainant's reassignment and job series change was simply
part of the reorganization of the agency's Policy and Operations groups.
Specifically, the agency found that legitimate, non-discriminatory reasons
were provided by management for the actions to which complainant objected
and that complainant was not treated any differently than other employees.
For example, complainant claimed the series to which her position was
converted (GS-1801-Investigator) was less desirable than the position
she previously held (GS-1101 - General business and industry). Agency
officials familiar with both job series denied that the investigator
series was less advantageous to complainant's career. S3 explained that
both complainant and her co-worker were initially assigned to write a
new policy and procedures manual. However, work load considerations
required that S3 reprioritize the tasks assigned to complainant and her
co-worker, so that S3 himself prepared most of the training materials,
while complainant and her co-worker continued with sunset case work.
Similarly, S3 stated that in his absence, C1, acting in S3's stead,
appropriately asked complainant for information to be submitted to S1,
as part of complainant's regular duties. The agency found nothing in
the record to contradict S3's account of the incident and concluded that
complainant was not harassed by C1 acting in S3's absence. The agency
further found that S1 admitted she placed her interrogatory answers
(from the investigation of complainant's prior EEO complaint) on the
shared network drive, but did so in error. The agency found no evidence
that S1 was motivated by complainant's race or reprisal when she made
the mistake and corrected it as soon as she realized her mistake.
With respect to claims (11) - (14) and (16) - (23), the agency found
that reasonable, non-discriminatory explanations were provided by the
agency officials involved in actions complainant believed were taken to
harass her. For example, agency officials stated that other employees
reassigned to the operations office did not have performance plans
when they were reassigned and that all of complainant's leave requests
were ultimately granted. The agency reasoned that if complainant's
leave requests were delayed, it was only because officials needed to
assess complainant's portfolio and examine any deadlines in connection
with complainant's requested time off. The agency acknowledges that
complainant was encouraged to use the compensatory time off that she
had accumulated because she had accrued the maximum allowed and the
agency did not pay overtime. Complainant did not, the agency found,
show that she was treated any differently than other employees, but
more importantly, that complainant did not show any nexus between the
agency's actions and her race or prior EEO activity.
The agency observed that S4, complainant's second line supervisor,
stated that she believed complainant felt harassed when complainant
did not like S4's tone of voice or what she had to say. However, S4
denies that she acted improperly. For example, S4 believed at first that
funds were not authorized for using movers and that S4 herself had moved
offices without movers. When S4 learned that movers were authorized,
she informed complainant, but complainant was not authorized to contact
the movers directly and S4 told complainant that S4's secretary would
make the arrangements. S4 further explained that the employees who have
business cards may have purchased their own and that S4 herself had done
exactly that. Again, the agency found that complainant did not establish
that she was treated differently than other employees and had not shown
that any of S4's actions were motivated by discrimination.
Regarding the reprimand issued by S4 to complainant, the agency observed
that S4's actions were prompted by an electronic mail message that
complainant sent to officials outside of the agency regarding the office's
reorganization. That message, S4 determined, was inappropriate and S4
admits she raised her voice in discussion with complainant about it.
Other agency officials confirmed the confusion that complainant's notice
had caused and S4 needed to impress upon complainant the problems she
had caused. The agency found that S4 was not motivated by complainant's
race or prior EEO activity, but prompted by complainant's own actions.
With respect to the selection of the Special Assistant to the Deputy
Assistant Secretary for Policy, the agency relies on the statement of the
selecting official, M1, who had no prior knowledge of complainant's EEO
activity. Complainant did apply for the position, was not selected and
a candidate, not in complainant's protected racial group was selected.
The agency found that M1 explained that complainant's interview was a
strange one, and that was the reason she was not selected. The agency
found that complainant did not show that her race was considered by M1
in his decision not to select her.
The agency also found that complainant's race played no role in the
agency's selection for the Import Policy Analyst position. Rather,
the agency noted that M2, the selecting official, indicated she was
looking for specific experience in antidumping/countervailing duty case
work that complainant did not have, but the selectees did. The agency
found that complainant did not establish that her qualifications were
superior to those of the selectees and that complainant did not show
that discrimination occurred as alleged with respect to either selection
process.
Regarding claims (9) and (15) the agency credited the statements of the
agency officials responsible for authorizing training for complainant.
Specifically, complainant's requests were granted to the extent the agency
had the funding to send employees for training and that complainant
was not denied any training because of her race or prior EEO activity.
S4 admits that one request that complainant submitted was lost, but a
second request was approved after work deadlines were reviewed.
The agency considered complainant's overall claim of harassment and found
that complainant did not show that the incidents she cites were shown to
be motivated by complainant's race or prior EEO activity. The agency
found that where complainant claimed to be harassed, she did not show
that harassment stemmed from her membership in a protected class.
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 EEOC Management
Directive 110, 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").
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 can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), 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. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
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. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
Claim (24)
We find the agency properly dismissed claim (24) pursuant to 29 C.F.R. �
1614.107(a)(8) for the reasons cited in the final decision. Further,
we note that the agency issued a final decision on September 28,
2006, regarding agency case number 02-55-00207 filed on July 5, 2002.
We therefore AFFIRM the agency's dismissal of claim (24).
Regarding the remainder of the complaint, we find that the agency's
final decision is adequately supported by the record and that the agency
properly concluded that the evidence does not show that complainant was
subjected to discrimination based on her race or retaliation for prior
protected activity.3
Claims (1) through (4)
We specifically note that claim (1) through (4) involve primarily the
actions of A1, an employee to whom complainant does not report, but whose
review of complainant's work products presumably impacts complainant's
performance. We find that while A1's manner of communicating her comments
regarding complainant's work could arguably be viewed as unpleasant
and even demeaning, we find nothing in the evidence suggests that A1's
arguably objectionable manner was motivated by complainant's race.
A1 was not among the agency officials named or involved in complainant's
prior complaints and accordingly, we find that the evidence does not
establish that A1 was motivated by reprisal.
Claim (5)
Complainant claims harassment with respect to the events that surrounded
her reassignment to the Office of China and Non-Market Economies. We find
the record confirms that complainant was not singled out for harassment
on any basis when the agency underwent reorganization and complainant's
position was moved to the office in question. As suggested in the
agency's final decision, the record confirms that timely communication
between the agency's personnel officials, employees and between employees
and supervisors appears to have been inadequate. We find complainant's
change of job series, supervisory structure, and requests for her resume
to be typical agency actions that generally accompany this type of
reorganization. We find nothing in the record to support complainant's
claim that the agency's reorganization was discriminatory.
Claim (6)
We find the agency properly concluded that the explanation provided by
S3, in whose stead C1 acted at the time of the incidents described in
this claim, is reasonable. We find that C1's request that complainant
provide information to S1 to be well within C1's authority to task
complainant under the circumstances. We do not find that C1 intended
to harass complainant because of her race or prior EEO activity, by
requesting that complainant undertake a task that would be ultimately
fruitless or frustrating given the absence of other employees from the
office and the time frame involved.
Claim (7)
In claim (7), we find the explanation provided by S1, that she placed
her interrogatory answers on a shared drive by mistake, to be reasonable
and non-discriminatory and complainant has not shown S1's reason to be
pretext.
Claim (8)
We find the agency properly analyzed and that the record supports the
agency's final decision with respect to the selections that occurred
for vacancies in the Office of Policy, for which complainant wished
to be considered and for which she applied. While the record shows
that complainant had extensive experience in policy analysis, we concur
that complainant has not shown that her qualifications for the various
positions were so superior to those of the selectees that discrimination
more likely than not, accompanied the agency's selection decisions.
We find complainant claim that she was misinformed by M14 regarding
openings uncorroborated in the record.
Claim (9)
We further concur with the agency that complainant has not shown that
other employees, similarly situated to complainant, were provided with
greater training opportunities, denied to complainant as alleged in
claim (9). We are not persuaded that S3's response (that the agency
was provided a limited number of tickets for employees and the tickets
were shared among the attending employees) was pretext. Again, we find
nothing suggesting that complainant's race or prior EEO activity motivated
S3 to provide complainant with any less training than any other employee
under his supervision.
Claim (10)
Claim (10) alleges that a task (writing an agency manual) was first
assigned to her (and another analyst) and later reassigned to other
employees instead. We find nothing unusual or discriminatory in the
assignment and subsequent reassignment of the sunset procedures manual
writing by S3. We find complainant does not successfully challenge
S3's explanation that he considered the priorities and workload of both
complainant and her co-worker (during the time the office was undergoing
reorganization) in determining that reassignment of the manual writing
task (in this case, to S3 himself) was appropriate. We find complainant
did not show that her race or prior EEO activity played any role in S3's
decision.
Claims (11), (12), and (17)
We note that the reorganization and change in the nature and composition
of complainant's work assignments appears to have been the agency action
that caused complainant to be assigned to work without a performance plan.
In its decision, the agency states that S4 admits that complainant's
allegations are accurate. We find no evidence to suggest that complainant
was left without a performance plan in order to harass her.
We find that at no time did complainant not have a supervisory structure.
That complainant continued to report to the supervisor with oversight
for complainant's sunset duties, while also reporting to S5, is
understandable, when viewed as accompanying the transition following
the reorganization of complainant's position to the operations group.
We find the record supports the agency's final decision and observe that
the complicated supervisory structure (and task coordination arrangement)
complainant experienced was more likely based on the unique circumstances
under which complainant worked at the time, than on discrimination.
Claims (13) - (15)
The Commission finds that delayed approval of annual leave and
training requests, complicated by poor communications (and possibly
miscommunication) between complainant and her supervisors would aggravate
any employee. However, we find, as did the agency, that complainant
did not show that the agency's reasons for the delay were pretext or
unworthy of belief. Complainant does not claim that she was denied leave
or that she lost either annual or compensatory time off as a result
of discrimination. More significantly, we find no evidence that the
agency delayed its approval of complainant's leave requests because of
her race or prior EEO activity.
Claims (16) - (21)
With respect to complainant's claim that no one in the office has any
knowledge regarding "sunset review" critical performance, we note that
complainant's allegations are admitted in part by S6, as well as other
agency officials. S6 agrees that she has never supervised sunset review
cases before, but she has "supervised a lot of cases with many of the
same procedures" and that "[t]he skills are the same, no matter what
the topic." We find it reasonable that S6's supervisory experience
in other cases motivated the agency to designate her as the sunset
review coordinator, and not complainant's race or prior EEO activity.
Complainant's remaining allegations regarding S6 stem from the manner in
which S6 supervised her work. We observe that complainant was clearly
unhappy reporting to S6 and resisted S6's efforts to supervise her.
We find nothing in complainant's allegations or S6's response to those
allegations suggests that S6 considered complainant's race or prior EEO
activity in relationship to her management of complainant's work.
Claims (22) and (23)
At the focus of claims (22) and (23) is complainant's working relationship
with S4. We find that complainant took exception to minor incidents
(subparts (a) and (b)) that by themselves, even if they occurred as
complainant stated, do not rise to the level of harassment. Subparts
(e) (S4 assigned complainant to write a training manual) and (f) (S4
denied complainant's request for business cards) as well as claim (23)
(S4 confirmed that complainant had been at a meeting), were actions
well within the scope of S4's position to take, and S4 provided valid,
business reasons to support her decisions. We find the record void of
any evidence that S4 considered complainant's race or prior EEO activity
in making what she considered to be prudent business-related decisions.
With respect to claim (22) subparts (c) (yelling at complainant) and (d)
(reprimand), we find that complainant has not shown that more likely than
not S4 raised her voice and issued discipline to complainant because of
her race or prior EEO activity. We find little disagreement between
complainant and S4 regarding the sequence of events that preceded the
issuance of the letter of reprimand. Clearly the two engaged in a heated
discussion regarding an electronic mail message that complainant authored
and sent to multiple recipients including outside parties. Assuming for
argument's sake that complainant's view is correct and that S4's reaction
to the message was totally inappropriate and further, that S4 was mistaken
or exaggerated any problems complainant's actions created, we find no
reason to infer that S4 would not have taken the same steps with any other
employee not in complainant's protected groups in similar circumstances.
We concur with the agency's final decision that complainant did not show
that she was harassed by S4 because of her race or prior EEO activity.
Based on a thorough review of the record, including complainant's
contentions on appeal, we AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 18, 2008
__________________
Date
1 The record reveals that S4 issued a letter of reprimand to complainant
dated July 25, 2005, regarding the June 21, 2005 electronic mail message
and subsequent discussion. Complainant requested that her complaint be
amended to add the letter of reprimand by letter dated August 15, 2005.
We shall consider the letter of reprimand to be part of the complaint
in this claim.
2 Claim (24) was originally numbered claim (11) by the agency. We have
renumbered this claim to preserve the numbering of the accepted claims.
3 On appeal, complainant arguments refer to sex discrimination as well
as race and reprisal. We note that sex was not identified as a basis
of the instant complaint either initially or by amendment.
4 Complainant alleged that when she inquired, M1 told her there were no
vacant positions in the Policy Office, while complainant claims that an
Inspector General's report from March 2005, indicates there were some 17 -
25 vacant position in that office.
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0120070663
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070663