01A12970_r
10-11-2002
Jacqueline Carter, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Jacqueline Carter v. Department of the Interior
01A12970
.October 11, 2002
Jacqueline Carter,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A12970
Agency Nos. FNP-99-113
FNP-00-003
DECISION
Complainant filed a timely appeal from an agency final decision on
the captioned complaints, claiming unlawful employment discrimination
pursuant to Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
The record reveals that during the relevant time, the agency employed
complainant as a GS-5 Realty Clerk at its Northeast Regional Office in
Philadelphia, Pennsylvania. After EEO counseling, complainant filed
the captioned complaints, which the agency accepted and consolidated
for processing. In these complaints, complainant claims that the agency
retaliated against her due to her current and prior EEO activity, as
evidenced by the following incidents:
(1) On June 11, 1999, complainant received an e-mail from her first
line supervisor (S1) criticizing her performance on a recent assignment;
On August 24, 1999, certain named co-workers received a $500.00
on-the-spot award for working on a special project, but complainant,
who also worked on the same special project, did not receive the award;
On August 26, 1999, without prior notice, the agency removed
complainant's computer from her desk, sending four employees into her
office to do so, including an armed guard; and
On September 10, 1999, S1 improperly issued complainant a Notice of
Reprimand.
At the conclusion of the investigation, the agency notified complainant
of her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its decision, the agency determined that complainant established
a prima facie case of retaliation regarding each of her four claims.
Specifically, the agency found that the concurrent processing of
complainant's additional EEO complaints at the time the incidents at
issue occurred, which all involved the same responsible agency officials,
established the required nexus under the applicable legal standards.
However, the agency also determined that the agency proffered legitimate
non-discriminatory reasons for its actions in each of the four claims,
and that complainant failed to prove, by a preponderance of the evidence,
that these reasons were a mere pretext for retaliation.
In addressing claim 1, the agency determined that it proffered legitimate
non-discriminatory reasons because of S1's statement that she sent
complainant the e-mail at issue due to her displeasure with complainant's
preparation of a deed package, averring that she had to obtain all the
necessary materials for complainant, and even then had to return the
package to complainant several times for corrections. The agency then
found that complainant's statements that she was unfamiliar with deed
package preparation, and that S1 also made errors, failed to establish
that the criticisms were either untrue or retaliatory.
Regarding claim 2, the agency found that it proffered legitimate
non-discriminatory reasons for not providing complainant with an
on-the-spot award. Specifically, the agency determined that only
the three Cartographic Technicians who served on the special project
team received that award, and that it was given to them because their
work on the project was outside of their normally performed duties.
By contrast, complainant's work on the team (typing cover memoranda), as
well as that of a Realty Specialist who also did not receive an award,
were routine and clerical in nature, and fell within their usual daily
work assignments. The agency then determined that complainant failed to
provide any evidence showing that this reason was untrue or a pretext
for reprisal.
With respect to claim 3, the agency found that the day before
complainant's computer was removed from her office, S1 discovered that it
had a secure database on it, one which complainant did not have clearance
to use, such that S1 viewed it as a security risk. Although the agency
acknowledged that it should have handled the removal itself in a less
confrontational manner, and that it intended to provide its managers with
training on improving communications, the agency nonetheless determined
that the removal was based on legitimate, non-discriminatory reasons;
specifically, to ascertain whether there had been a security breach.
As further evidence of the legitimacy of this reason, the agency noted
that after confiscation, it delivered the computer to the computer
expert who designed the secured program at issue so that he could
determine whether complainant used the program to gain access to the
secure database. The agency then determined that complainant failed
to produce any evidence that this reason was a pretext for retaliation,
finding that although the removal took place a day after she attempted
to have her previous complaints mediated by the agency, there was no
evidence to show that the responsible management officials involved in
the removal of the computer were aware of this development.
In addressing claim 4, the agency determined that it demonstrated that
S1 properly issued the Notice of Reprimand based on her assessment that
it was warranted due to complainant's insubordinate behavior, namely,
her failure to explain the presence of the secured database on her
computer, her failure to report to the office of a named management
official in connection with the presence of the database, her failure
to report to S1's office to discuss certain training, her failure
to comply with a direct order, and her failure to accomplish tasks
assigned to her. The agency then determined that complainant failed to
produce sufficient evidence to show that these reasons were a pretext
for discrimination, noting in particular that S1 and complainant gave
contradictory accounts about the circumstances surrounding the discovery
of the secured database icon, finding that it was impossible to know who
was telling the truth, but that complainant ultimately failed to show
pretext by a preponderance of the evidence. The agency additionally
found that although complainant averred that she had never received a
reprimand prior to this Notice of Reprimand, the record demonstrated
that she received a Letter of Warning in 1998, for insubordination,
which was the subject of one of her pending complaints.
On appeal, complainant contends that S1 distorted the circumstances
concerning the preparation of the deed package in claim 1 as well as
the incidents in the Notice of Reprimand, and avers that S1 undertook
these actions in retaliation for naming her in the pending complaints.
Complainant further argues that S1 refused to recommend her for an
on-the-spot award only because of the pending complaints, contending that
she did far more work than the Realty Specialist assigned to the special
project. Regarding the icon on her computer, complainant contends that S1
set her up, placing the icon and secured program on the computer herself,
and then orchestrated its removal in a confrontational and humiliating
manner as a means of retaliation. Complainant argues that given the
close temporal proximity of the incidents at issue and the occurrence of
certain developments in the processing of her pending EEO complaints,
there can be no other conclusion but that these actions were motivated
by retaliatory animus.<1>
In response, the agency disputes the accuracy of complainant's factual
contentions on appeal, and further avers that while the temporal
proximity asserted by complainant establishes a prima facie case,
creating an inference of discrimination, it does not, without more,
prove retaliatory intent by a preponderance of the evidence.
After careful review, we concur with the agency that complainant
established a prima facie case of retaliation, given that she named the
same responsible management officials in several pending complaints,
and the on-going processing of these other complaints at the same time
the incidents in her claims occurred. Notwithstanding this clear nexus,
we find that complainant nonetheless failed to present sufficient
evidence that more likely than not, the agency's articulated reasons for
its actions were a pretext for retaliation. See Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318 (D. Mass.), aff'd
545 F.2d 222 (1st Cir. 1976) .
Regarding claim 1, we find that while complainant contends she did
not know how to prepare a deed package, and that S1 distorted the
circumstances of this incident, the record shows that this type of
assignment is within complainant's position description. Moreover, the
record also shows that in recognition of complainant's concern about her
inexperience with deed packages, S1 asked her to obtain assistance from
a co-worker if she needed help. However, the record shows that due to
complainant's lack of effort, it ultimately fell to S1 to obtain all the
materials for complainant, and that even after substantial assistance,
the work had to be returned to complainant for corrections. Therefore,
given that the record shows that complainant made little effort to
attempt the assignment, resulting in S1 performing much of the task,
even to include obtaining materials, we find that the agency proffered
legitimate nondiscriminatory reasons for S1's e-mail to complainant
expressing her displeasure at complainant's lack of effort. Moreover,
even in light of any contemporaneous involvement by S1 in complainant's
pending complaints, we find that without more, complainant has failed
to demonstrate a retaliatory motive in sending the e-mail.
Regarding claim 2, we find that the record confirms the agency made the
awards at issue in recognition that the award recipients performed work
outside of their normal duties, and did so in an exemplary fashion.
By contrast, witness affidavit testimony reflects that complainant
performed only routine clerical duties, and, notwithstanding her arguments
to the contrary, did not contribute greatly to the project. Therefore,
again, while it is true that complainant's other EEO complaints were
being processed at the time that the same responsible management officials
decided to make these awards, we find that in light of the evidence that
complainant's contribution to the project did not warrant an award,
she fails to demonstrate a retaliatory motive in her exclusion from
receiving an award.
In claim 3, we find that the record confirms that complainant, as a
Realty Clerk, should not have had the secured database at issue on her
computer, and that only approximately half of the staff had access to
this database. Therefore, while complainant claims that everyone had
the database on their computers, we find that this statement is not
supported by the record. Moreover, in light of the affidavit testimony
of the computer expert who examined the computer and determined that it
had only recently been installed, on August 10, 1999, we must question
the veracity of complainant's claim that she had the database on her
computer for about one year without any question about it until she filed
EEO complaints. We also find that complainant's claim that S1 set her
up, by installing the database on her computer and then removing the
icon, is mere speculation. Moreover, we find that the agency's method
of removal appears to be the result of the absences of key management
officials, combined with the inexperience of those assigned to implement
the removal. Accordingly, we find that the agency acted in response
to a legitimate concern of unauthorized access to a secured database
when it removed complainant's computer, and that complainant failed to
submit sufficient evidence to show that this reason is untrue or that
the removal was motivated by retaliation.<2>
Finally, regarding claim 4, we find that the evidence of record confirms
that complainant received prior discipline for insubordination in the
previous year. Therefore, we discount complainant's claim that she
never received discipline of any kind prior to the September 1999 Notice
of Reprimand, as well as her argument that the agency only disciplined
her for the first time by issuing her this Notice of Reprimand after
she filed EEO complaints. Moreover, while complainant disputes the
agency's insubordination charge, and alleges that S1 issued the Notice
of Reprimand as a �cover-up,� we find that the record nonetheless
demonstrates that the identified incidents occurred, and that the
agency's version of these events is credible. Accordingly, we find
that complainant failed to prove, by a preponderance of the evidence,
that the agency improperly issued her a Notice of Reprimand and that
this action was motivated by retaliation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the Commission AFFIRMS the
agency's final decision that complainant failed to prove her retaliation
claims by a preponderance of the evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 11, 2002
__________________
Date
1On appeal, complainant requests that we consolidate the instant appeal
with two other appeals she has before the Commission, docketed as EEOC
Appeal Nos. 01992260 and 01A03335. However, we note that the Commission
consolidated these two appeals and issued a decision on August 15,
2002, finding no discrimination. Nonetheless, we have reviewed the
claims raised by complainant in her previous complaints, FNP-98-114,
FNP-99-028, and FNP-99-039, which are the subject of the consolidated
appeals, and fully taken them into consideration in rendering the instant
appeal determination.
2We note that the computer expert determined that the icon for the secured
program was deleted, but that the database was added to complainant's
computer on August 10, 1999, and that it was still on complainant's
computer at the time of its removal. However, the computer expert
ultimately determined that complainant did not use the system to access
or change the secured files.