01992260_01A03335
08-15-2002
Jacqueline Carter, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Jacqueline Carter v. Department of the Interior
01992260; 01A03335
August 15, 2002
.
Jacqueline Carter,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal Nos. 01992260; 01A03335
Agency Nos. FNP-98-114; FNP-99-028; FNP-99-039
Hearing Nos. 170-99-8264X; 170-99-8265X
DECISION
INTRODUCTION
Complainant filed two appeals with this Commission from final
agency decisions pertaining to her complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The Commission may, in its discretion, consolidate two
or more complaints of discrimination filed by the same complainant.
See 29 C.F.R. � 1614.606. Accordingly, the Commission exercises its
discretion to consolidate the cases herein. The appeals are accepted
pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
During the relevant time, complainant was a GS-5 Realty Clerk
with the agency's Northeast regional office in Philadelphia,
Pennsylvania. Believing that she was the victim of discrimination,
complainant contacted the EEO office. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, complainant filed
three complaints, which the agency consolidated for joint processing.
The complaints, framed by the agency, are as follows:
(1) On July 21, 1998, complainant filed a complainant claiming that
she was discriminated against based on race, color, sex, age and in
reprisal for prior protected activity when she was denied appraiser title
training<1> (ongoing and most recent occurrence on May 1, 1998). (Case
No. FNP-98-114)
(2) On October 14, 1998 complainant filed a complaint based on race,
sex, age and in reprisal for prior protected activity. Complainant was
allegedly denied appraiser title training (ongoing and most recent
occurrence on August 28, 1998). (Case No. FNP-99-028)
(3) On September 10, 1998, complainant filed a complaint claiming that
she suffered discrimination in reprisal for prior protected activity
when she was issued a Letter of Warning (LOW) for insubordinate conduct
on July 20, 1998. (Case No. FNP-99-039)<2>
On January 22, 1999, the agency issued a decision accepting claims
(1) and (3) for investigation. Claim (2) was dismissed on the grounds
that it stated the same claim that was pending before the agency.
Specifically, the agency determined that claim (2) was �encompassed
within the term �ongoing' in the accepted [claim 1].� This decision,
however, was �reissued� on March 26, 1999, when the agency discovered
that it inadvertently dismissed claim (2) instead of claim (1).
Based on a review of its records, the agency concluded that the claim
in Case No.FNP-98-114 (claim 1) is included in FNP-99-028 (claim 2).
Therefore the previously accepted claim (1) was dismissed and claim
(2) was accepted. Complainant appealed the dismissal to the Commission
(EEOC Appeal No. 01992260).
At the conclusion of the investigation of claims (2) and (3), complainant
requested a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a decision finding no discrimination.
As an initial matter, the AJ noted that on September 22, 1999 the
Supervisory AJ issued a decision granting, in part, the agency's Motion
for Summary Judgment. According to the AJ, complainant presented two
issues: from June 1996 and ongoing, she was denied appraisal title
training, the appraiser job title, and mentoring; and, on July 20,
1998 she was issued a LOW. The AJ noted that the Supervisory AJ found
complainant was not entitled to the appraiser job title or mentoring,
and therefore dismissed those matters. The Supervisory AJ also determined
that complainant failed to establish a prima facie case of discrimination
based on race, color, age or sex. Therefore, the issues that remained
were whether complainant suffered retaliation when: 1) she was denied
appraisal training after May 14, 1998 and 2) when she was issued a LOW
on July 20, 1998.
With respect to the denial of appraisal training, the AJ concluded that
complainant failed to establish a prima facie case of disparate treatment
based on reprisal. While complainant showed that she engaged in prior
protected activity and her supervisor was aware of her activity, the AJ
found that complainant was not subjected to an adverse action at the time
she filed her complaint. The AJ reasoned that complainant's requests
for appraisal training had not been denied. Acknowledging that the
supervisor may have delayed her training, the AJ stated that this was
not done due to complainant prior EEO activity, but rather in reaction
to a change in the agreement between complainant and her supervisor.<3>
Regarding the LOW, the AJ found that complainant did establish a prima
facie case of reprisal discrimination. However, the AJ also found that
the agency presented a legitimate, nondiscriminatory reason for the LOW.
According to the agency, although the task was eventually completed,
complainant repeatedly refused numerous requests to reorganize certain
appraisal files. In an effort to show pretext, complainant argued
that her position involved little or no filing and that prior to the
incident no one had ever complained about her work. The AJ did not
find complainant's assertions to be credible, noting, for example,
that her position description included the maintenance of the files
and that she was referred to as the �file room boss.� Lastly, the
AJ did not find complainant's claim that the only reason she gave for
not doing the assignment was problems with her knees to be credible,
based on testimony from complainant, the Deputy Realty Officer, and
Chief Appraiser. Therefore, the AJ concluded that complainant failed
to establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful retaliation.
On March 10, 2000, the agency issued a decision adopting and implementing
the AJ's decision finding no discrimination.<4> The decision was appealed
to the Commission by complainant. (EEOC Appeal No. 01A10335).
ANALYSIS AND FINDINGS
Claim (1) (Appeal No. 01992260)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
As noted above, the agency dismissed claim (1) pursuant to 29 C.F.R. �
1614.107(a)(1), reasoning that claim (2) encompassed claim (1).
Complainant contends in claim (1) that she was denied appraiser
title training "ongoing and most recent occurrence on May 1, 1998."
In claim (2) she also claims that she was repeatedly denied appraiser
title training, but cites August 28, 1998, as the most recent incident.
On appeal, complainant presents no contentions regarding the dismissal
of claim (1).
Based on a review of the record, we find that the agency properly
dismissed claim (1) on the grounds that it states the same claim that is
set forth in claim (2) (Case No. FNP-99-028). In both cases complainant
is alleging she was discriminated against when she was continuously denied
appraiser title training. Accordingly, the agency's dismissal of claim
(1) is AFFIRMED.
Claims (2) and (3) (Appeal No. 01A03335)
Summary Judgment
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
On September 22, 1999, a Supervisory AJ partially granted the Agency's
Motion for Summary Judgment. The Supervisory AJ dismissed the denial
of appraiser job title and denial of mentoring issues, finding that
complainant failed to establish a prima facie case based on race, color,
sex, age, or reprisal. The Supervisory AJ noted that the comparator
cited by complainant was a GS-11, and that as a GS-5 clerk she was not
"similarly situated" to the comparator. Further, the Supervisory AJ found
that complainant was "not entitled to the appraiser job title nor to the
mentoring to advance as an appraiser." With respect to the particular
basis of reprisal, the Supervisory AJ stated that complainant did not
engage in any EEO activity until she sought counseling on these issues
and that she was not treated differently, with regard to the job title
or mentoring, after she filed. Regarding the appraiser title training
and LOW, the Supervisory AJ found that complainant did not establish a
prima facie case of race, color, sex or age discrimination.
After a careful review of the record, the Commission finds that the
Supervisory AJ's grant of summary judgment to the agency was appropriate,
as no genuine issue exists as to any material fact. Construing the
evidence in the light most favorable to complainant, we note that
complainant failed to present evidence that the agency's actions were
motivated by discriminatory animus toward complainant's race, color,
sex or age.
Hearing
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
On November 30, 1999 and December 1, 1999, a hearing was held regarding
whether complainant was discriminated against based on retaliation for
prior EEO activity when: 1) subsequent to May 14, 1998, she was denied
appraiser training; and, 2) on July 20, 1998, she was issued a LOW.
The AJ found that complainant failed to establish that either of the
agency actions were in retaliation for her prior EEO activity.
With respect to the denial of appraiser title training, the AJ determined
that complainant failed to establish a prima facie case. To establish a
prima facie case of reprisal discrimination a complainant must present
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).
As noted above, the AJ found that complainant failed to establish the
third element, adverse action, because at the time she initiated her
formal complaint complainant's training requests had not been denied
and complainant's appraisal training was not denied, but merely delayed.
With respect to the fourth element, the AJ found that the training was
not delayed because of complainant's prior EEO activity but rather due
to her attempt to change the agreement reached between herself and the
supervisor. Citing the Supervisory AJ's decision, the AJ noted that
complainant was not entitled to the job appraiser title. Moreover,
the AJ found that complainant failed to support her bare assertion,
that the supervisor agreed to place her in an appraiser position, with
any competent evidence.
After a careful review of the record, the Commission finds that the AJ
properly decided that the complainant failed to establish a prima facie
case of discrimination. Although the complainant claims that she was
discriminated against when she was denied appraiser training, she herself
acknowledges that she took the requested Appraisal Institute training
in July 1999. She argues that the training was delayed by seven months.
However, the record does not indicate how she was harmed by the delay nor
that her supervisor imposed the delay in reprisal for her EEO activity.
Moreover, the record does not establish that complainant was entitled
to the appraiser training as a GS-5 Realty Clerk.
Regarding the July 20, 1998 LOW, the AJ concluded that complainant
established a prima facie case of reprisal discrimination because she
initiated EEO contact on May 14, 1998, which her supervisor became
aware of a few days before the LOW was issued. Because the LOW was
issued approximately four weeks after the supervisor became aware of
complainant's complaint, the AJ found that a nexus was established.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
supervisor issued the LOW based on complainant's repeated refusals to
follow her orders on June 26, 1998. Specifically, complainant was asked
to reorganize certain appraisal files, but she responded by stating that
it was not her fault that the files were out of order and it was the Chief
Appraiser's responsibility to file the reports. Complainant continued
to refuse to do the requested task, also citing problems with her knees.
Eventually, after talking to others in management, complainant completed
the task with the help of co-workers.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that filing
was one of complainant's duties and her contentions to the contrary
were not credible. Further, the AJ was not persuaded by complainant's
assertions that her performance had never been criticized before.
Therefore, the AJ was not convinced that the filing assignment was only
given to complainant because of her prior EEO activity.
With respect to the LOW issue, the Commission finds that the AJ
properly found no discrimination. The record fails to establish that
the agency's articulated reasons were actually a pretext to mask unlawful
retaliation. Testimony developed at the hearing shows that complainant
was not considered a model employee, but rather one who was "less
than conscientious", rushed through tasks and not a good team player.
Moreover it appears that filing was one of her duties and that she did
not respond appropriately when assigned the filing task. Complainant has
not provided sufficient evidence to show that the LOW was issued because
of her prior EEO activity, rather than the reasons articulated by the
agency. Therefore, we discern no basis to disturb the AJ's decision,
finding that discrimination was not established in claims (2) and (3).
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
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
August 15, 2002
__________________
Date
1 In a letter dated January 29, 1999, the agency amended the
complaint to include the denial of "appraiser trainer title and
appraiser title training" (emphasis added), based on information
provided by complainant. While the agency's subsequent decision,
issued on May 26, 1999, only refers to the denial of training,
and not the title, the Commission notes that the title issue was
addressed by the AJ.
2Thereafter, the agency referred to the three cases as (1), (2) and
(3). The Commission will do so as well, for the purposes of consistency
and clarity.
3The AJ concluded that complainant changed the substance of the agreement
she had with her supervisor regarding what courses she would take and
what would happen once they were completed, namely that she requested
an appraisal position while the supervisor only agreed to training.
The AJ found no persuasive evidence that the supervisor had agreed to
place complainant in a position.
4The Commission notes that the agency's decision erroneously refers to
claims (1) and (3), rather than claims (2) and (3).