0120061751
05-15-2007
Kathleen A. Lee, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, (Animal, Plant Health Inspection Service) Agency.
Kathleen A. Lee,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
(Animal, Plant Health Inspection Service)
Agency.
Appeal No. 01200617511
Agency No. 040430
DECISION
On January 17, 2006, complainant filed an appeal from the agency's
December 12, 2005, final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
ISSUE PRESENTED
The issue presented in this appeal is whether the agency's decision
finding that no discrimination occurred on any of the alleged bases was
correct.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Office Automation Clerk at the agency's Citrus Canker Education
Program, Plant Protection and Quarantine office in Miami, Florida.
On May 15, 2004, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of religion (Catholic), age
(D.O.B. 11/08/49), and in retaliation for prior protected EEO activity
(EEO statute unspecified) when:
1) in May 2003, she was denied the opportunity to work an alternative
work schedule (AWS);
2) on September 5, 2003, the Area Director charged her with being Absent
Without Leave (AWOL);
3) on February 12, 2004, the Assistant Program Director made derogatory
remarks about the her age;
4) during the week of March 8, 2004, she discovered that someone had
splattered ketchup on her car which constituted workplace violence and
a malicious act; and
5) on June 9, 2004, a proposed fourteen (14) day suspension was reversed
and complainant was given a letter of reprimand for sleeping on the job.
Complainant also alleged that these incidents created a hostile work
environment because of her EEO complaint activity as well as her
religious beliefs.
At the conclusion of the investigation, the agency provided complainant
with a copy of the report of investigation and advised of her of the
appropriate rights. In accordance with complainant's request, the
agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b)
concluding that complainant failed to prove that she was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
Neither party gave additional comments or arguments on appeal.
ANALYSIS AND FINDINGS
First we must set forth the standard of review on appeal of the agency's
final decision. 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).
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." This means that EEOC will "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"). Id.
In this case, complainant claims she was treated less favorably than
others because of her membership in protected classes. In this kind of
case alleging disparate treatment, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a
prima facie case by demonstrating that 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).
The Commission will dispense with the prima facie inquiry, however,
since the agency has articulated legitimate and nondiscriminatory reasons
for its conduct. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). Specifically, the
Area Director, complainant's first line supervisor (S), asserted that the
federal regulatory staff was, for the most part, on a five day work week
with an eight hour shift. He was responsible for ensuring adequate staff
coverage and that his staff was synchronized with other office components.
In addition, S stated that there was no supervisor available on duty
for the same schedule that complainant had requested. This was one of
the requirements for granting the alternative work schedule to other
employees and was no different than that applied to complainant.
Ultimately, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is a pretext for discrimination. 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); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995). In terms of the agency's decision
denying her an alternative work schedule, complainant claimed that
others were given this opportunity. However, she did not demonstrate
that these individuals were similarly situated to her or that the
agency's reasons for initially denying her the schedule was not worthy
of belief. Specifically, complainant did not show that there were
available supervisors who worked an alternative work schedule and could
supervise her during those hours.2 In addition, complainant failed
to present any evidence that the agency's decision in this regard, was
based on factors related to her age, her religious beliefs or the fact
that she engaged in protected EEO activity.
In terms of S's decision to charge complainant AWOL, complainant did not
dispute that she failed to adhere to the office policy that she obtain
approval for annual leave requests in advance.3
We turn now to complainant's claim that the proposed suspension was
motivated by discriminatory animus since it also involves many of the
same factual allegations of complainant's claim. The proposed suspension
was later reduced to a letter of reprimand by an upper level manager.
Complainant claimed that this disciplinary action was not based on
legitimate reasons because she was unfairly accused of sleeping on the
job when, as she contends, she was "saying the rosary" on her break time.
Complainant claimed that the accusation that she was sleeping on the
job was a derogatory reference to her age.
Even assuming that complainant established a prima facie case of
discrimination, the Commission finds that there is no evidence that
the agency's reasons for the discipline were not credible. The record
reflects that S proposed a suspension because he discovered complainant
sleeping during working hours on several occasions, she had taken extended
breaks and she failed to assist him on a project. The agency official
responsible for the final decision reduced the proposed suspension based
on his inability to determine whether S's version of the events was true,
because complainant had good work performance and because there was a
lapse in time until the decision was reached. This manager accounted
for complainant's claim that she was legitimately on a break and was
engaged in some form of religious practice. As a result, he reduced
the discipline to a letter of reprimand. Notwithstanding the actions
of the manager, we find no evidence that S acted out of a desire to
discriminated against complainant.
Complainant claimed that she discovered her car splattered with a
ketchup-like substance which, according to complainant, was related to
the harassment and retaliation she was subjected to because she engaged
in protected EEO activity. However, the record contained no evidence
to substantiate that the incident occurred, let alone, that any of the
responsible management officials were aware of the incident until they
were interviewed by the investigator. Based on the lack of evidence
linking any action on the part of the agency with the incident, the
Commission in unable to conclude that discriminatory harassment occurred.
Since the Commission concludes that there is no evidence that the
incidents alleged were based on complainant's membership in a protected
class, and that the agency had legitimate non-discriminatory reasons for
its action, complainant's claim of a hostile work environment must also
fail.4
CONCLUSION
For these reasons, and after a review of the record as a whole, including
arguments and evidence not specifically mentioned in this decision, the
Commission concludes that the agency's decision finding no discrimination
is correct and it is affirmed.
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
____05/15/07_______________
Date
1 Due to a new data system, this case has been re-designated with
above-referenced appeal number.
2 The record discloses that the agency later changed its policy and
granted complainant's and other employees' requests for AWS.
3 The record reflects that S ultimately rescinded the AWOL and gave
complainant a warning. He then approved complainant's leave request.
4 Generally, to establish a claim of harassment based on religion, age
or reprisal, complainant must show that: (1) she is a member of the
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. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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0120061751
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061751