0120070941
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. 0120070941
Agency No. 02-55-00207
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 an International Trade Specialist at the agency's Market Access
and Compliance Division (MAC) for Europe of the International Trade
Administration facility located in Washington, D.C.1 Complainant had
been hired as a special assistant to the Deputy Assistant Secretary for
Europe (DAS) in January 2001. On July 5, 20022, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of race
(African American), sex (female), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964,3 with respect
to the assignment of her duties, undermining her role at the agency,
scrutinizing her work and travel plans, denying her travel requests,
denying her training, not selecting her for promotion, and subjecting
her to harassment as described in the following incidents.
1. The Director of the Office of East Europe, Russia and the
Independent States (S1) and S2 from the Office of Multilateral Affairs,
and others interfered with complainant's duties and attempted to minimize
her role as Coordinator for the Good Governance Program for Europe;
2. S1 and her subordinate, C1, attempted to exclude complainant
from travel to Eastern Europe;
3. After complainant was tasked with developing a database for
market access and compliance issues, the MAC Europe staff disregarded
her requests for information and told her they were going to set up the
database their own way;
4. The MAC Europe staff disregarded the due dates of assignments
and taskers complainant issued on behalf of her supervisor, M1;
5. S2 and S3 (S2's subordinate supervisor) speak to complainant
in a contemptuous and hostile manner, and on one occasion, S2 placed
complainant in fear of physical violence;
6. S1 and S2 monitored and interfered with complainant's assignments
although they were not complainant's supervisor at the time;
7. Complainant's supervisor (M1) and S1 denied four of complainant's
nine travel requests, in part due to pressure from S1, who did not want
complainant on any trips in her areas;
8. S1, S2 and Senior Policy Advisor M2, so tarnished complainant's
reputation with Assistant Secretary for Market Access and Compliance M3,
that he accepted whatever negative information he received about her
without question;
9. After suffering a miscarriage on November 11-13, 2002, complainant
returned to work only to have S1 inform her a couple of days later that
she had installed a baby monitor in the office;
10. S1 removed all of complainant's duties without reason or notice,
except issuing taskers and attending compliance meetings, and did
not substitute the removed duties with any relevant and substantive
duties. S1 told her to find new projects because she was prohibited
from working on governance and she was no longer allowed to travel.
S1 failed to respond to her request to co-chair the European Union (EU)
Enlargement Task Force and suggested she go into a career of teaching
at universities;
11. S1 refused to allow complainant to attend a conference to which
she had been invited to speak on governance. S1 told complainant she had
no added value, and sent a White male with no subject matter expertise;
12. S1 reassigned complainant from her position of Special Assistant
to the Deputy Assistant Secretary to Desk Officer for France, a less
prestigious position. Complainant's Special Assistant duties were
assigned to a White female, GS-15. Her administrative duties were assigned
to a secretary;
13. M3 did not afford complainant an opportunity to discuss her
personnel issues. He gave her no more than ten minutes, and eventually
directed his assistant to handle the matter;
14. S1 delayed complainant's career ladder position;
15. After telling complainant there were no governance duties she
could perform and there was no need for a governance program for Western
Europe, the agency officials established a Western European Compliance
Team and assigned a White male to coordinate it; furthermore other team
members were personally invited to join while M3 sent his assistant,
C2, to invite her. Despite being in her job description, M3, M2 and C2
removed the duty of coordinating the compliance issues for MAC Europe
from her and assigned it to a White male (C3) who told her that he was
promised a promotion to GS-14;
16. S1 directed complainant to move out of the front office and gave
her desk to a White male;
17. M2 told others complainant was the biggest troublemaker ever to
hit the agency;
18. After complainant came under S2's supervision, S2 insisted
that complainant take annual leave for a late arrival, although this
is not the office custom when an employee stays late the day before,
as complainant had;
19. Complainant's orientation as the France/Benelux Desk Officer was
truncated because her supervisors delayed approving her travel orders,
and approved less time than she needed to visit her assigned countries
(France, Belgium, Luxembourg and the Netherlands);
20. While in Belgium in April 2002, complainant attended a meeting
with C4, another Desk Officer, who cut her off every time she tried to
speak;
21. S2 and S3 interrogated complainant about her plans to attend an
American-German Business Club event which was not work related and was
held after work hours;
22. M2 instructed that complainant not be allowed to participate in
the African Working Group;
23. M3 refused to allow complainant to travel to the Netherlands
with him, whereas the Desk Officers for Poland and the Czech Republic
were permitted to travel when he visited those countries;
24. S1 advertised the Special Assistant position in March 2002,
and selected a White male;
25. Since April 2002, M3 refused to allow complainant to communicate
with him directly;
26. S2 and S3 have spread rumors that complainant is lazy;
27. S1 questioned complainant's request to travel to California
and delayed the travel order. S1, M2 and C2 rescinded her travel order
for the Northern California trip and replaced her with a White male.
This was done so that she and C5, another African American employee,
could not travel together;
28. S3, S2's subordinate supervisor, speaks to complainant in a
contemptuous manner;
29. S1 denied complainant's request to co-chair or participate in
the EU Enlargement Task Force;
30. S2 and S1 sent various emails addressing an assignment without
complainant's coordination even though she is the coordinator for the
MAC Europe project;
31. Complainant was denied a copy of the vacancy announcement for
her position after requesting it from S3 and personnel;
32. S2 interfered with complainant's attendance at the March 2001
American Turkish Conference despite her being directed to attend the
conference by her supervisor, M1, as a substitute for him; and although
C3 asked her in March 2002, to attend an American Turkish Conference
in his place, S2 and S4 interfered with her attending the conference by
leaving seven electronic mail messages and telephone messages in a day
requesting she return to the office;
33. In March 2002, S4, who was Acting Supervisor, began to chastise
complainant regarding her attendance at the American Turkish Conference;
34. S2 and S1 meddled in compliance outreach trips and wanted to
refuse complainant's travel requests even though they were not the
supervisors that approved such travel;
35. S3 requested that complainant place a sign within her office
whenever she attends a meeting, although no one else is required to do
so;
36. C3 continuously submits weekly reports omitting complainant's
work;
37. Complainant was denied travel to Luxembourg and Brussels except
for the purpose of orientation;
38. Complainant is limited to one week of travel time for orientation
visits;
39. S3 unreasonably requested that complainant complete letters to
be signed by the Secretary within one day;
40. Under Secretary M4 failed to respond to complainant after she
placed him on notice on July 5, 2002, that she was being subjected to
a hostile work environment;
41. S3 conducted complainant's progress review on July 17, 2002,
which was two months before her annual review and humiliated her by
"commending" her for wanting to participate on the Europe Team after he
had her unjustifiably removed from the team and then informed her that
she was in over her head;
42. On July 29, 2002, complainant was informed that she was being
removed from the Seattle trip and replaced by a White male;
43. On July 29, 2002, complainant was denied an opportunity in
September 2002, to escort M3 to Belgium, a country in her portfolio;
44. In late July or August 2002, S1, S2, M2 and the new DAS unduly
scrutinized complainant's travel request to attend the African Americans
in Government conference, and unreasonably interfered by refusing to
authorize her travel for almost a month and falsely accused her of lying
on her justification;
45. On August 5, 2002, complainant was denied a bonus, although
everyone else in the office received one;
46. On August 9, 2002, S3 minimized complainant's role in the office
in papers describing the work content of each employee to the new DAS,
and by failing to acknowledge her expertise and foresight regarding the
countries of Luxembourg and Monaco in an issue paper being prepared for
a Deputy Secretary;
47. On August 13, 2002, C2 removed complainant as the lead officer
on a case that she had uncovered in New Jersey;
48. On August 28, 2002, while attending the African Americans in
Government Conference, S3, who was not a supervisor in the compliance
scheme or C6's supervisor, directed C6, another African American
employee, to call and leave a message for complainant at the hotel.
S3 met with C6 concerning whether or not she was "overstepping [her]
bounds" concerning the performance of outreach duties;
49. Complainant's accomplishments on the compliance team are
minimized;
50. Complainant was continuously harassed at all stages of approval
while attempting to schedule and obtain approval for needed travel;
51. S2 and S3 continuously imply to upper management that complainant
is not completing her assignments;
52. S3 deliberately sent repeated electronic mail messages to damage
complainant's reputation by conveying that her supervisor did not have
any confidence in her completing her assigned tasks;
53. In late August - September 5, 2002, C2 and C3 refused to allow
complainant to travel throughout Tennessee and only approved travel for
two days despite her having scheduled meetings throughout the week;
54. Despite several requests from the governor's office, C3 and
M2 refused to allow complainant to attend and speak at the Tennessee
Governor's conference;
55. On September 16, 2002, S3 submitted a schedule proposal with
complainant as the staff point of contact without her knowledge.
Complainant received the schedule proposal in her box a few days later;
56. In September 2002, C3 warned her that C2 and S3 may not approve
her travel to the University of Tennessee for a speaking engagement
despite the University's offer to pay all her expenses;
57. In September 2002, C3 told complainant that the EU Compliance
Officer in Belgium might be sent to speak in Paris, France, rather than
her;
58. In September 2002, C2 and C3 refused to let complainant attend
the Delaware Port Authority Conference;
59. S3 refused to allow complainant to escort the Deputy Secretary
on his trip to Belgium and Luxembourg;
60. On September 30, 2002, White employees received a second bonus,
totaling over $2,000, a lesser amount than she received, and she was
not given the certificate of recognition that normally accompanies cash
awards;
61. While waiting to speak with the American ambassador concerning
a possible detail as a commercial officer after a meeting on October 4,
2002, M3 said to complainant, "Shouldn't you be leaving now?" This was
the first time that M3 had spoken to her since May;
62. In October 2002, S3 told complainant she could not get promoted
to GS-13 because two White male desk officers had not received their
promotions and they had more seniority than she did. A White female desk
officer received a promotion to GS-13 on her anniversary date;
63. In November 2002, complainant transferred to another job in
Import Administration because of the hostile work environment she was
being subjected to;
64. In November 2002, someone was leaking information to complainant's
supervisors that she was transferring;
65. On November 15, 2002, complainant's last day in MAC, S4, another
White male peer, assigned a tasker to her and gave her a deadline,
an action she found disrespectful as the employee was a peer and not a
supervisor;
66. Complainant was not given a going away party as was customary
in the Europe office when someone leaves;
67. After complainant had transferred, M3 or someone in his office
referred to her in a sarcastic manner by saying in front of a group of
people, "There goes the finest legal mind in D.C.;"
68. In February 2003, complainant was not selected for the position of
Supervisory International Trade Specialist, GS-1140-13, with promotion
potential to GS-14, as announced under Vacancy Announcement Number
ITA-TD-03-137-RC;
69. In March 2003, complainant discovered two false personnel actions
in her official personnel file that showed a false transfer with promotion
out of MAC Europe to MAC Western Hemisphere around January 21, 2002,
and then a transfer back to MAC Europe around March 25, 2002;
70. Despite receiving an ITA Quarterly Team Award, she was not
asked to attend the awards ceremony held on April 30, 2003, and when
she questioned M3's secretary about the ceremony, it was cancelled; and,
71. In June 2003, complainant found out that C3, the new Netherlands
Desk Officer, accompanied M3 to the Netherlands.
At the conclusion of the investigation, 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 pursuant to
29 C.F.R. � 1614.110(b) and concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
In its decision, to each allegation, the agency noted the responses
provided by the responsible managers, supervisors and employees during
the investigation. The agency found that the officials explained the
reasoning behind actions to which complainant took exception, which,
the agency found, were legitimate and not motivated by discrimination.
For instance, complainant alleged discrimination when she was reassigned
from her position as Special Assistant to the Deputy Assistant Secretary
to the position of Desk Officer for France, which, in her mind was a
less prestigious position. Complainant also stated that M3 (Assistant
Secretary for Market Access and Compliance) did not give complainant an
opportunity to discuss her personnel issues. M3 responded that it is
normal for a Deputy Assistant Secretary to appoint an International Trade
Specialist to act as a special assistant and perform any job duties
they feel necessary, as complainant had been appointed. M3 further
stated that the individual typically acts in the position until they
leave, are no longer needed, or until the appointing DAS leaves the
organization. The individual then returns to Trade Specialist duties.
Moreover, the agency noted that complainant's supervisor at that time,
S1, disagreed with complainant's assessment of the desk officer position
as less prestigious.
The agency considered that a number of the incidents described in
complainant's complaint (incidents (2), (7), (11), (19), (21), (23),
(27), (32), (34), (37), (38), (42), (43), (44), (50), (53), (54), (56),
(57), (58), (59), and (71)) concerned travel plans. The agency found
that complainant traveled extensively, but was not allowed to travel on
every trip she requested. For example, in response to complainant's
allegations contained in incident 21, both S2 and S3 stated that the
meeting complainant desired to attend had little or nothing to do with
market access and compliance issues, and there was no business need for
complainant to attend. S3 noted the meeting would require complainant to
stay in Paris over the weekend, and there was no need to do so. C3 stated
that complainant traveled more than any other task force member during
the time in question. With respect to other allegations, complainant was
mistaken about events. For example, regarding incident 71, the agency
noted that C3 denied that he accompanied M3 to the Netherlands and stated
that he traveled to the Netherlands alone. The agency concluded that
complainant was not denied travel because she was an African-American,
female or because she raised EEO issues.
With respect to complainant's harassment claim, the agency found that
officials denied that they were disrespectful to complainant, and denied
many of the remarks complainant attributed to them, including incidents
(5), (8), (26), (67). The agency found no support for complainant's
allegations that agency officials and employees made derogatory remarks
or created a hostile work environment for complainant. The agency noted
that an incident involving S2 (summarized in incident (5)) did occur,
but that S2 described the confrontation as instigated by complainant.
The agency found that this unprofessional encounter was not related to
complainant's race, sex, or EEO activity. Still other events did occur,
but the officials involved responded that their actions were appropriate
under the circumstances and at no time was complainant's sex, race,
or EEO activity a motivating factor. For example, M3 confirmed that
he believed it more appropriate for lower level management to address
complainant's personnel issues (incident (25)) and not appropriate
for complainant to contact him directly with her complaints. He also
believed it was appropriate to deny complainant's request to accompany
him to the Netherlands (incident (23)) because he previously practiced
law there and her presence was not needed.
Regarding complainant's career ladder promotion, (incident (14)), the
agency found that complainant was indeed promoted when she was eligible
for promotion, on her anniversary date. Similarly, the agency found that
complainant was given a copy of the vacancy announcement she requested
(incident (31)).
With respect to bonuses and awards, (incidents (45) and (60)), the agency
found that complainant failed to establish a prima facie case of sex
or reprisal discrimination. The agency found that complainant received
bonuses in the amounts of $560.00 and in September 2002, she received an
award of $943. A White female employee received $2,000 in July 2002,
but no award in September 2002. The agency observed that still another
employee (C7 - White, female) received $500 in September 2002. However,
the agency noted that C7 had received awards of $500, $250, and $1,000
previously in the year and that C5 (a African American female co-worker)
received an award of $1,600 in September 2002, and C6 (a African American
male co-worker) received a $500 award in July and three awards in August
in the amounts of $500, $1,000, and $500. The agency concluded that
while complainant received smaller bonuses than did the White employees
she identified, African American employees also received larger bonuses
than complainant received. Accordingly, the agency found that complainant
did not establish that she was denied or received lesser awards because
of her race, sex or in reprisal for her EEO activity.
Regarding the selection of a Supervisory International Trade Specialist,
the agency found that complainant did not dispute the selecting official's
statement that she was unaware of complainant's EEO activity and
therefore complainant did not establish a prima facie case of reprisal
discrimination when she was not selected for the subject position.
The agency noted that the selecting official stated that complainant was
a good candidate, but she was not the best candidate and that a hiring
freeze meant the office could not bring in a new employee from outside
the office of Trade Development. The agency found that complainant did
not show that her qualifications were superior to those of the selectee
and accordingly, the agency found no discrimination occurred as alleged
in incident (68).
The agency concluded that whether analyzed under a theory of disparate
treatment or when viewed as an overall claim of harassment based on sex,
race or reprisal, complainant failed to show any of the agency's actions
as alleged in the 71 incidents were motivated by discrimination.
On appeal, complainant explains her view of the agency's actions,
circumstances, and remarks she found to be discriminatory for each
incident set forth in her amended complaint, consistent with her
investigative affidavit.
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).
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 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
Complainant alleges that she was subjected to a hostile work environment.
To establish a prima facie case of a hostile work environment (in the
absence of any tangible employment actions), a complainant must show
that: (1) she is a member of a statutorily protected class; (2) she
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on the statutorily protected class; and (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.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. �1604.11.
In the instant case, we find that the incidents of harassment alleged
in complainant's complaint can be viewed as falling into a handful of
categories4:
Incidents (1), (3), (4), (6), (10), (15), (21), (22), (29), (30),
(32), (36), (39), (46), (47), and (49), allege various challenges
to complainant's authority, interfering with or undermining her job
performance and resisting her participation in matters that involved
what others perceived to be their areas of responsibility.
Incidents (2), (7), (11), (19), (21), (23), (27), (34), (37), (38),
(42), (43), (44), (50), (53), (54), (56), (58), (59), and (71), involve
efforts of complainant's supervisors, co-workers and managers to obstruct
complainant's travel arrangements which compromised complainant's
opportunities to succeed in her position.
Incidents (5), (9), (13), (20), (25), (28), (33), (40), (41), (48), (55),
(57), (61), (65), and (66), allege what complainant viewed to be rude,
insulting, or demeaning communications or behavior.
Incidents (8), (17), (26), (51), (52), (64), and (67), pertain to the
efforts of various agency officials and employees to damage complainant's
reputation.
Incidents (12), (14), (16), (18), (24), (31), (35), (45), (60), (62),
(63), (68), and (69), allege discrimination with respect to the terms
and conditions of her employment including discriminatory reassignment,
relocation of her desk, performance reviews, non-selection, delayed career
ladder promotion, and smaller or denied bonuses. Complainant alleged
she was essentially demoted to the position of Desk Officer after M1
retired and, unable to endure the harassment any longer, complainant
felt compelled to request a transfer to Import Administration.
We find that with respect to incidents (1), (3), (4), (6), (10),
(15), (21), (22), (29), (30), (32), (36), (39), (46), (47), and (49),
that the agency officials and employees involved have described the
problems (or confusion) created over the development of complainant's
role and responsibilities after she was hired into the position of
special assistant to the DAS Europe. We note that in his statement,
complainant's supervisor explains that he never received any reports that
complainant was being treated poorly by other staff, but he had "numerous
meetings with [S1] explaining [complainant's] role on governance and the
need to contribute to [the] office's direction on governance programs
and priorities." After examining the incidents complainant describes
and the statements of the agency witnesses involved, we find that
complainant has not shown any evidence linking her race or sex with the
agency's actions. We find that complainant has not shown that reprisal
motivated those events that occurred after complainant's EEO contact
in July 2002 (incidents (39), (46), (47) and (49)) inasmuch as C3 was
not in a supervisory role and unaware of complainant's EEO activity.
S3 had heard rumors that complainant had filed a complaint, but nothing
in the record indicates his awareness came in close proximity to the
time of the events described in these incidents, or that S3's actions
were motivated by reprisal.
We observe that with respect to the travel incidents ((2), (7), (11),
(19), (21), (23), (27), (34), (37), (38), (42), (43), (44), (50),
(53), (54), (56), (58), (59), and (71)), multiple witnesses indicate
that travel requests were often denied, travel plans were rearranged.
Multiple witnesses also indicated that decisions regarding travel
involved both the skill sets of the staff members, travel resources,
the purpose of the proposed travel, the agency's mission, the number
of objectives to be achieved compared to the costs, and prior approved
travel. We find no support for complainant's claims that the denials
of complainant's travel requests were based on her race, sex or in
reprisal for her prior protected activity. Rather, the record confirms
that complainant's approved travel was commensurate or slightly better
than the travel approved for other employees. We note specifically with
respect to incident (27), that C5 (a female African-American co-worker)
states that she preferred not to travel with complainant after an initial
trip with her to California.
Regarding the incidents ((5), (9), (13), (20), (25), (28), (33), (40),
(41), (48), (55), (57), (61), (65), and (66)) in which complainant
claims that agency officials and staff members communicated with her in
a disrespectful manner, and sought to damage complainant's reputation
(incidents (8), (17), (26), (51), (52), (64), and (67)), we find that
complainant has not described behavior so objectively offensive as to
rise to the level of harassment, either when viewed in isolation or
with the other incidents as an overall claim of harassment. Further,
the more egregious events ((5) (threat of physical violence); (9) (baby
monitor placed near her office)), are disputed by the identified parties.
Complainant has not established that either incident (5) or (9) or any
of these incidents listed in this paragraph were motivated by her race,
sex, or in reprisal for her EEO activity.
Similarly, we find the record supports the agency's position that
after complainant's supervisor (M1) retired, complainant's position
as his 'special assistant' was for all practical purposes, abolished
and complainant was reassigned to other duties by the person who in
turn, became the Acting Deputy Assistant Secretary for Europe, S1.
While complainant may have considered the incidents that accompanied her
change of position (incidents (12), (14), (16), (18), (24), (31), and
(35)) discriminatory, the evidence does not indicate that complainant's
reassignment and relocation were anything but ordinary operational
decisions that occur in similar circumstances.
We find that concerning the awards or bonuses (incidents (45) and
(60)), the agency properly found that the evidence did not support a
finding that complainant's race or sex played any role in the agency's
award decisions. Rather, we find the evidence shows no correlation
between employee race or sex and the amounts or frequency of the awards
distributed in 2001 and 2002, from which to conclude that complainant
was subjected to discrimination as alleged. Furthermore, there is no
evidence of retaliation in these incidents.
In incident (68), complainant alleged that she was told by the selecting
official that she was the "best pick" for the position. The selecting
official states, however, that while complainant was a good candidate,
she lacked the specific knowledge of small business programs and export
programs used by small businesses (e.g., export finance programs).
We find that complainant has not shown that her qualifications were
superior to those of the selectee or that discrimination motivated the
agency's selection decision.
We find that complainant's request to be reassigned to the Import
Administration (incident (63)) occurred when complainant was unhappy
with her position and the employees in MAC, but not because she was
subjected to harassment based on her race, sex or reprisal.
Finally, we find that even if complainant intended her claim of reprisal
to be part of all the claims in the complaint, we find that complainant
has not shown that any action in the complaint was motivated by reprisal.
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 Thus, her office was located in Washington, D.C.
2 Complainant's complaint was subsequently amended to add additional
incidents of discrimination and to add the basis of reprisal. The
amendments are included in the description of the complaint in this
decision.
3 Incidents 37 - 71 are based on reprisal as well as race and sex
discrimination. Incidents 1 - 36 are based only on race and sex
discrimination.
4 We have grouped the incidents somewhat loosely and we acknowledge
that some incidents fall into more than one category and have placed
them accordingly.
??
??
??
??
2
0120070941
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
14
0120070941