Kathleen A. Lee, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, (Animal, Plant Health Inspection Service) Agency.

Equal Employment Opportunity CommissionMay 15, 2007
0120061751 (E.E.O.C. May. 15, 2007)

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

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P. O. Box 19848

Washington, D.C. 20036

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