0120100135
08-17-2012
Lynette Anglin, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Lynette Anglin,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120100135
Agency Nos. HS-08ICE-007268, HS-08-ICE-006500
DECISION
Complainant filed an appeal from the Agency's January 29, 2010, 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant failed to demonstrate that she was discriminated as alleged. 1
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination and harassment based on her race, color, sex, age, and in reprisal for prior EEO activity with respect to a number of work place incidents.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-13, Senior Intelligence Research Specialist, at the Agency's Office of Intelligence Finance and Trade Fraud Unit facility in Washington, D.C.
In formal complaints dated July 26, 2008, and August 23, 2008, which were consolidated for consideration, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), color (not specified), age (46), and reprisal for prior protected EEO activity when:
1. Since approximately May 16, 2006, management failed to upgrade her to a GS-14 Intelligence Research Specialist (IRS) position;
2. On May 19, 2008, and several days thereafter, a coworker duplicated her work effort;
3. On May 29, 2008, she was unable to attend a meeting at the Federal Bureau of Investigation (FBI) due to her first-line supervisor's inaction and failure to follow established FBI protocol;
4. Subsequent to June 20, 2008, her first-line supervisor disparately questioned her request for compensatory time; and thereafter made it difficult for her to use the compensatory time once her supervisor approved it;
5. Subsequent to June 26, 2008, her first-line supervisor disparately questioned and delayed authorization of her travel voucher covering the June 17, 2008, through June 18, 2008 period;
6. In early July 2008, management tasked Complainant with an impractical research assignment concerning foreign entities;
7. On August 11, 2008, management advised her that she could not attend training in Oklahoma City, Oklahoma;
8. Since October 1, 2007, management failed to issue her an annual performance evaluation for fiscal year (FY) 2007;
9. On August 11, 2008, her first-line supervisor denied her request for training due to a lack of funds; and
10. On or about September 30, 2008, she became aware that her supervisor incorrectly processed her Time and Attendance (T &.A) record for pay period 17. 2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that assuming arguendo that Complainant established a prima facie case discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, with regard to issue no. (1), Complainant was not promoted because the Interim Acting Unit Chief (IAUC) did not make any selections or promote anyone during his tenure. The IAUC acknowledged that he did discuss the topic of promotion with Complainant but he never made any promises to promote her. The Agency indicated that there was some discussion regarding upgrading all GS-13 Senior Intelligence Research Specialist positions but no action was taken regarding the discussion. With regard to Complainant's argument that less qualified Intelligence Research Specialist were upgraded, the Agency explained that if other employees were promoted it was not under IAUC and these employees either applied for available positions, which Complainant never did, or their GS series went to a 14. Management indicated that Complainant was performing at the top of her GS series.
Regarding issue no. 2, management explained that it was not able to substantiate Complainant's claim that a co-worker duplicated her work. Management indicated that the IAUC was out of the office and when he asked Complainant for her research, Complainant indicated that she had shredded it. Accordingly, the IAUC was unable to act upon Complainant's allegations as he had no supporting evidence. With regard to issue no. 3, attendance at the FBI Meeting on May 29, 2008, the Agency explained that Complainant was required to submit paperwork and receive clearance to attend. Complainant did not submit her paperwork until May 27, 2008, which did not give the IAUC enough time to complete the paperwork. The Agency maintained that Complainant's failure to attend did not have a negative impact on Complainant's promotion eligibility.
With regard to issue no. 4, compensatory time, the Agency explained that the IAUC was in an acting capacity so when Complainant requested compensatory time and did not provide any verification to support her request, he simply requested that she provide verification. Complainant's request was approved. Likewise, with respect to issue no. 5, management explained that Complainant was required to go to a meeting in New York City in June 2008. She was allotted one travel day. Complainant submitted expenses for two travel days. While reviewing everyone's documentation, IAUC noticed irregularities in the travel expenses of several employees, including Complainant, and he sent requests via email for clarification of these expenses.
With regard to issue no. 6, the assignment given to Complainant in July 2008, the Agency indicated that the research assignment was well within the purview of her position. Management indicated that Complainant was given the opportunity to showcase her skills and enhance her career possibilities. Further, with respect to the training in Oklahoma, the Agency explained that Complainant was asked to attend the August 2008, training. Complainant did not complete the registration for the training until July 24, 2008. Around this time, the IAUC received information regarding the training budget. Consequently, he determined that, due to budget concerns, the training in Oklahoma had to be cancelled. With respect to issue no. 8, Complainant's 2007 performance appraisal, the Agency indicated that while the IAUC did conduct a performance review he did not give it to Complainant because he had not acted for the designated time period and therefore, according to agency, regulations he could not issue the performance appraisal. Regarding issue no. 9, denial of training, the Agency explained that the training budget did not allow for training at that time. Finally, with regard to issue no. 10, the Agency acknowledged that the IAUC incorrectly processed Complainant's time and attendance. Management explained IAUC questioned Complainant about the leave in order to correct his mistake.
The Agency asserted that the totality of the evidence failed to show that management subjected Complainant to a discriminatory or retaliatory hostile work environment. Specifically, Complainant failed to produce any evidence establishing that management subjected her to unwelcome comments or conduct based on her race, color, sex, age, or reprisal. The Agency maintained that although Complainant may have subjectively perceived that management subjected her to a hostile work environment she based her perception on no more than speculation. The Agency argued that Complainant simply failed to provide any evidence which proved that management officials involved were actually motivated by a discriminatory animus. Therefore, the Agency found that Complainant failed to prove her case.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency used her experience to train other employees and then those employees received promotions. She also makes similar arguments that were raised throughout the processing of her complaints.
In response, the Agency maintains that its finding of no discrimination and no harassment should be affirmed because the Agency articulated legitimate, nondiscriminatory reasons for it actions, and Complainant failed to show that those reasons were pretext for discrimination.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions as was set forth above. We also find that Complainant failed to show that discriminatory animus was involved with any of the Agency's actions. These matters appear to be more akin to work place interactions between Complainant and a new supervisor who raised more questions than had been raised in the past. We find that other than Complainant's conclusory statements, she has not provided any evidence which demonstrates that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. Therefore, the Commission finds that Complainant failed to show that she was subjected to discrimination as alleged.
Further, with respect to Complainant's claim of harassment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the Agency's FAD which found no discrimination.
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
__8/17/12________________
Date
1 The record reveals that Complainant prematurely requested a review from the Commission. In Complainant's initial briefs she requested that the Commission assist her in having the Agency provide a hearing or a FAD. Complainant submitted several orders and briefs prior to the Agency submitting a FAD which could be appealed.
2 The Agency dismissed the following claims for untimely EEO Counselor contact: (1) On December 29, 2007, management notified Complainant that she could not utilize advance sick leave; (2) In December 2007, management tasked her with a research assignment in order to distract her preventing her from applying for an inter-office vacancy announcement; (3) In April 30, 2008, her work unit left the office to attend an off-site briefing prior to her arriving at work. The Agency found that Complainant did not raise these claims with an EEO Counselor until October 1, 2008, which was more than five months after the latest incident. Upon review, we find that the Agency correctly dismissed these claims for untimely EEO Counselor contact.
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01-2010-0135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100135