01A14471
12-04-2002
Maria Osorio-Armstrong, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Maria Osorio-Armstrong v. Department of the Army
01A14471
December 4, 2002
.
Maria Osorio-Armstrong,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A14471
Agency Nos. AJAGFO9906J0280, AJAGFO9906J0290, AJAGFO0001A0020
Hearing No. 120-AO-3243X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as an Industrial Hygienist, GS-690-12, at the agency's Kirk
Health Center, Aberdeen Proving Ground, in Maryland.<1> Complainant
sought EEO counseling and subsequently filed two formal complaints,
the first on March 30, 1999, the second complaint on May 18, 1999,
and a third informal complaint on October 19, 1999, alleging that she
was discriminated against on the bases of race (Black), color (Black),
national origin (Hispanic), sex (female), and reprisal for prior EEO
activity when:
Complaint 1 (AJAGFO9906J0280)
(1) Management manipulated statistics and lied about complainant's
duty performance to justify lowering performance ratings for the years,
1996, 1997, and 1998.
Complainant's supervisors applied performance standards unequally to
women and other minorities, and the standards were not based on 100%
of the duties outlined in the position description.
Supervisors harassed complainant by closely scrutinizing her work.
Performance standards were not reevaluated to allow complainant
flexibility to successfully accomplish collateral duty of Hispanic
Employment Program Manager.
Complaint 2 (AJAGFO9906J0290)
Complainant was charged absent without leave (AWOL) for coming late to
a meeting.
Changes were made in complainant's assignment of duties and she was
not given a sufficient number of buildings to conduct her sampling.
Quality control standards were applied differently to complainant.
Complainant received a memorandum from her supervisor concerning a
change in work requirements that was different from other employees.
Complaint 3 (AJAGFO0001A0020)
Management officials made false accusations concerning complainant's
data usage.
Complainant was denied training and was pulled out of a training class.
Complainant was criticized for using professional judgment.
By letter dated January 12, 2000, complainant requested consolidation
of her complaints and a hearing before an EEOC Administrative Judge
(AJ). Subsequently, complainant withdrew her request for a hearing
and requested a FAD. Thereafter, the agency requested a fact-finding
conference and the preparation of a Report of Investigation (ROI).
After the completion of the ROI, the agency issued its FAD.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination based upon race, color, sex,
and national origin but that she established a prima facie case of
discrimination on the basis of reprisal. The FAD further concluded,
for the purposes of analysis, that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and complainant did not
show pretext.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency manipulated statistics,
did not consider all of complainant's sampling, and that she was rated
lower than other industrial hygienists due to discrimination and reprisal.
The agency contends that complainant did not offer any persuasive
evidence that the agency's actions were related to her race, color,
national origin, sex, or reprisal, and requests that we affirm its FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Regarding complainant's claim of reprisal, the Commission has stated that
adverse actions need not qualify as "ultimate employment actions" or
materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003
(May 20, 1998)). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id.
The gravamen of nine of complainant's eleven claims relate to
complainant's performance, performance evaluations she received, or
performance standards as applied to complainant. Claim 5 relates to an
AWOL determination for arriving late to a meeting, and claim 10 relates
to being denied training and being removed from a training class.
Performance-Related Claims
The agency asserted that standards were equally enforced, that no one's
standards exactly reflected their position descriptions, and that all
industrial hygienists were doing essentially the same work. The agency
also asserted that degrees of difficulty in achieving standards were
changed for all hygienists as operational needs changed, and that
complainant's workload was increased when additional time was made
available to her due to a lowering in her collateral assignment standard.
Further, the agency asserted that sampling data was counted the same way
for all staff and that all hygienists' work was subject to being reviewed
and rewritten. The agency further asserted that it did not manipulate
data, that complainant often did not meet agency testing requirements,
and that complainant's work was reviewed the same way other hygienists'
work was reviewed. The agency also asserted that complainant's work
contained errors and that some work was missing necessary details, and
what complainant claimed as scrutiny was actually feedback. These are
legitimate, nondiscriminatory reason for the agency's actions, i.e.,
closely scrutinizing complainant's work, lowering complainant's
performance ratings, evaluating complainant's work performance, and
assigning duties to complainant.
Therefore, the burden returns to complainant to demonstrate that the
agency's reasons were a pretext for discrimination. The complainant
has not met her burden in this regard. Complainant has not provided
sufficient evidence that would persuade us that the agency's reasons
for its actions were a pretext for discrimination, nor did complainant
provide sufficient evidence that she was entitled to higher ratings,
that management manipulated statistics, or that her supervisors enforced
performance standards unequally.
AWOL
Concerning complainant's AWOL for arriving late for a branch staff
meeting, the record reflects that complainant did not deny that she was
late, that she was aware that attendance at the meeting was mandatory,
that complainant was aware that she was to arrive on time, and that
complainant was aware that no excuses would be accepted for being late.
The record also reflects that the AWOL was changed to annual leave as
the result of a grievance filed by complainant. Complainant's late
arrival at the staff meeting is a legitimate, nondiscriminatory reason
for charging her an AWOL. Complainant was not able to present sufficient
evidence that the action was based on discrimination or reprisal for
prior protected activity.
Training
Concerning the training claims, the agency submitted that the training
was not necessary for complainant's position or her collateral duties, and
that budgetary reasons existed for not approving the requested training.
These are legitimate, nondiscriminatory reasons for removing complainant
from training which was not related to her position, and for not approving
a training class. The record does reflect that the agency did allow
complainant to attend other training programs. Complainant was not able
to present evidence that the denial of any training or her removal from
a training class was motivated by discriminatory animus or reprisal for
prior protected activity.
Harassment
Although not discussed in the FAD, the Commission will analyze
complainant's allegations as a claim of harassment. The Commission
has often noted that harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
or religion is unlawful, if it is sufficiently patterned or pervasive.
McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single
incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be
determined by looking at all of the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995).
Complainant did not provide sufficient evidence that her supervisors
harassed her by closely scrutinizing her work, or not reevaluating her
performance standards to allow complainant flexibility to successfully
accomplish collateral duty of Hispanic Employment Program Manager. The
agency's alleged actions did not create a hostile work environment.
When the allegations are viewed as a claim of harassment and reprisal,
the alleged incidents were not sufficient to have altered the conditions
of complainant's employment, create a hostile work environment, or be of a
nature that could reasonably likely deter one from engaging in protected
activity. Although the claims were denied by the agency, the claims,
even if proven to be true, would not indicate that complainant had been
subjected to harassment that was sufficiently severe or pervasive to
alter the conditions of her employment.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
December 4, 2002
Date
1 Complainant, effective February 14, 2000, became an Environment
Protection Specialist, GS-028-11.