0120112840
10-28-2011
Lisa L. Hanson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Federal Emergency Management Agency), Agency.
Lisa L. Hanson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120112840
Agency No. HS09FEMA00389
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s March 25, 2011 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Core Disaster Recovery Specialist at the Agency’s Management Division
(MD), Region 1 facility in Boston, Massachusetts.
On June 19, 2009, Complainant filed a formal complaint alleging that
the Agency discriminated against her on the bases of sex (female)
and age when: 1) on February 25, 2009, FEMA management required her
to return to “the assignment where her funding stream originated,”
while management did not require a similarly-situated male employee to
return;1 2) on February 26, 2009, FEMA management notified her that
it was releasing her from her Cadre On-Call Response Employee (CORE)
position, effective May 26, 2009; and 3) on April 30, 2009, she learned
that management had offered a younger similarly-situated employee a CORE
position in the National Preparedness Division (NPD), after informing
her that no positions were available.
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). Complainant requested a
final decision within the time frame provided in 29 C.F.R. § 1614.108(f).
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie
case, management had recited legitimate, nondiscriminatory reasons for
its actions. Concerning Complainant's release from her CORE position,
the MD Director stated that the Agency released Complainant from the
CORE position because FEMA had hired her only as a two-year term CORE
employee, and Complainant's two-year appointment expired on May 26, 2009.
With respect to NPD’s failure to offer Complainant a CORE position, the
Federal Preparedness Coordinator (FPC) explained that NPD was allocated
a new CORE in the Community Preparedness Branch. The FPC did not offer
Complainant the position because he had direct-hired [the Selectee]
since the CORE position was directly related to an elementary school
educational program that the Selectee was managing as a Reservist/Disaster
Assistance Employee.
On appeal, Complainant asserts, inter alia, that the Agency improperly
found no discrimination in this matter. She further asserts that the
Agency did not adequately address her claims of harassment. In response,
the Agency maintains that Complainant never asserted a hostile work
environment claim prior to her appeal, when such a claim is untimely
and should be thrown out. Also, the Agency found that Complainant's
three claims, either individually or collectively fail to rise to
the level of unlawful harassment prohibited by the ADEA or Title VII.
The Agency further maintains that Complainant tries to raise a number of
new claims on appeal. The Agency asserts that its Report of Investigation
is appropriate for the three claims presented, and it has yielded an
impartial record.
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, 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 prima facie inquiry may be dispensed with in this case,
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).
To ultimately prevail, 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).
The evidence of record supports the Agency’s finding that management
witnesses articulated legitimate, nondiscriminatory reasons for the
disputed actions. Briefly, management explained that Complainant
was released from her position because her two-year term appointment
expired. Management also proffered a legitimate reason for not offering
Complainant a new CORE position in the NPD, explaining that it was
instead offered to the person who was already performing the tasks in
another capacity. Complainant has failed to meet her burden of proving,
by a preponderance of the evidence, that the Agency's proffered reasons
for its actions were a pretext for discrimination.
To the extent that Complainant is also claiming that the events she
alleged also amounted to a discriminatory hostile work environment, we
also find inadequate support for this claim. Harassment of an employee
that would not occur but for the employee’s race, color, sex, national
origin, age, disability, religion or prior EEO activity is unlawful,
if it is sufficiently patterned or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985));
EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9
(March 8, 1994). While Complainant has cited various incidents where
Agency management took actions that were either adverse or disruptive
to her, we find that Complainant fails to show that these incidents were
taken based on her sex or age.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 28, 2011
__________________
Date
1 In its final decision concerning claim 1, the Agency noted that
Complainant had alleged in her formal complaint that management
“required” her to return to the assignment where her funding stream
originated. However in Complainant's EEO affidavit, she stated, “On
February 25, [the Federal Preparedness Coordinator] suggested I return
to [the MD].” At no time was I required to return to [the MD].”
Consequently, the Agency determined that Complainant was not aggrieved,
and claim 1 does not state a viable claim. We affirm the Agency’s
dismissal of this claim.
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0120112840
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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