0120103040
01-10-2011
Maureen B. Murphy, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Maureen B. Murphy,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120103040
Hearing No. 570-2010-00647X
Agency No. DOS-F-91-09
DECISION
On June 24, 2010, Complainant filed an appeal from the Agency's June
11, 2010, final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts
it 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 is whether the Agency correctly determined that
Complainant failed to establish by a preponderance of evidence that she
was subjected to harassment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Senior Interior Designer in the Agency's Office of Residential Design
and Cultural Heritage, Office of Operations, in Arlington, Virginia.
On July 20, 2009, Complainant filed an EEO complaint alleging that the
Agency subjected her to a hostile work environment on the basis of age
(58) when:
1. She was denied permission for travel on numerous occasions since
April;
2. She was subjected to a hostile work environment, characterized by,
but not limited to, efforts to undermine her authority and performance;1
3. Since December 2008, management has removed parts of her portfolio
and also assigned her tasks that are not contained in her position
description;
4. She was denied the assistance of a junior designer;
5. On April 24, 2009, a Personal Service Contractor was assigned to
supervise her;
6. She was placed on a Performance Improvement Plan (PIP) on April 24,
2009; and
7. Management issued her a 2008-2009 EER that did not accurately reflect
her performance and accomplishments.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). Complainant
timely requested a hearing but subsequently withdrew her request.
Consequently, 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.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that we vacate the Agency's decision
finding no discrimination and find that Complainant was harassed as
alleged.
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 EEO MD-110
(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").
Preliminarily, we note that Complainant stated in her affidavit that she
believed that the Agency subjected her to harassment in order to force
her to retire. We find that Complainant's claims is better construed
as a claim of constructive discharge. A discriminatory constructive
discharge occurs when the employer, motivated by discriminatory
animus, creates working conditions that are so difficult, unpleasant,
or intolerable that a reasonable person would feel compelled to resign.
Doe v. Social Security Admin., EEOC Appeal No. 01A114791 (Feb. 21, 2003).
In other words, the employee is essentially forced to resign under
circumstances where the resignation is tantamount to the employer's
termination or discharge of the employee. Kimzey v. Wal-Mart Stores,
Inc., 107 F.3d 568, 574 (8th Cir. 1997).
The Commission has adopted a three-pronged test for establishing a
constructive discharge. Complainant must show that: (1) a reasonable
person in her position would have found the working conditions
intolerable; (2) conduct which constituted prohibited discriminatory
treatment created the intolerable working conditions; and (3)
Complainant's involuntary resignation resulted from the intolerable
working conditions. Greer v. United States Postal Serv., EEOC Appeal
Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor v. Dep't of
Defense, EEOC Request No. 05900630 (July 20, 1990)).
We find that there is no indication in the record that Complainant was
subjected to intolerable working conditions which arose out of conduct
which constituted prohibited discrimination due to her age. The record
reflects that two other Senior Interior Designers, who Complainant
contends were treated more favorably with regard to claims 1, 3,
and 4, were both of Complainant's protected class and of similar age.
With regard to claim 1, Complainant's Supervisor, Acting Office Director
of Residential Design and Cultural Heritage, (AOD) provided affidavit
testimony stating that Complainant was not permitted to travel due to
her failure to submit projects in a timely manner and being behind in
her workload. Report of Investigation (ROI) at 97. Complainant has
not offered any evidence to contradict AOD's statements.
With regard to claim 3, the AOD stated in her affidavit that according
to standard practice, when she assumed the position of Division Chief,
she redistributed her portfolios and assumed responsibilities for the
high profile portfolios. Id. AOD also stated that she redistributed
portfolios from the other Senior Interior Designers. Id. at 98.
Complainant has not offered any evidence to show that this was not the
case or that the redistributions were conducted in a discriminatory
manner.
Turning to claim 4, the AOD testified that the office travel policy
allows the assistance of a junior designer when two or more properties are
being reviewed. Id. AOD stated that because Complainant was approved
to go only to Nicosia, "a trip consisting of just one full day at post
before returning home . . . a junior designer was not authorized by office
policy, nor necessary for the review of one property." Id. We find that
Complainant has not presented any evidence to demonstrate that this is
not the case or that the AOD was motivated by discriminatory animus.
With regard to claim 5, AOD stated in her affidavit that she never placed
the contractor as acting supervisor. Id. We find that is no evidence
in the record to support Complainant's contentions that this incident
occurred as alleged.
Finally, with regards to claims 6 and 7, the record reveals that
Complainant was placed on a PIP and given a lower rating due to
substandard performance. Id. at 99 -100. Generally, PIPs and negative
performance determinations of the sort at issue in this appeal cannot
create a work atmosphere that, to the mind of a reasonable person,
would be intolerable, if they are based on an objective assessment of
the employee's job performance. Additionally, we find that Complainant
offers no objective evidence to show that her work product was up to
the expectations of her supervisors.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the FAD
finding that Complainant failed to establish that she was subjected to
a constructive discharge as alleged.
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
___1/10/11_______________
Date
1 Complainant's hostile work environment claim encompasses the other 5
incidents alleged in this complaint.
2 Complainant also alleged the following claims: Because of her age (over
40), she was discriminated against when; (A) In October 2007, she was not
selected for a GS-15 Chief, Interior Design position; (B) her supervisor
improperly disclosed information to her colleagues in violation of the
Privacy Act; and (C) she was denied an opportunity to apply and compete
for a GS-15 Chief of Residential Design and Cultural Heritage Branch.
In a letter dated August 13, 2009, the Agency dismissed claims (A) and
(C) as untimely and (B) for failure to state a claim. We note that
with regard to claims (A) and (C), the Agency properly dismissed the
allegations as untimely because "discrete discriminatory acts [alleged
as part of a harassment claim] are not actionable if time barred,
even when they are related to acts alleged in timely filed charges."
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (June 10,
2002). However, such untimely discrete acts may be used as background
evidence in support of a timely claim. See id. at 117. Nevertheless, in
this case, Complainant has not contested the dismissal of claims (A), (B),
and (C) on appeal. Therefore, the Commission exercises its discretion
to review only the issue specifically raised in complainant's appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 9-10 (Nov. 9, 1999). Accordingly, we decline to address
these incidents on appeal and AFFIRM their dismissals.
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0120103040
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103040