0120113059
03-07-2013
Melissa V. Lucas, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Geological Survey), Agency.
Melissa V. Lucas,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Geological Survey),
Agency.
Appeal No. 0120113059
Agency No. USGS-10-0203
DECISION
Complainant filed an appeal from the Agency's final decision, dated May 6, 2011, 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. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405(a).
BACKGROUND
During the relevant time, Complainant worked as a Property Management Specialist, GS-101-11, at the Agency's US Geological Survey Property Management Branch in Reston, Virginia.
On March 30, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On November 1, 2009, her first and second-level supervisors refused to change her Performance Appraisal rating, for the period December 1, 2008 to September 20, 2009 to a higher rating;
2. From November 18, 2009 to April 19, 2010, she was harassed and subjected to a hostile work environment; and, as amended,
3. On June 4, 2010, her second level supervisor issued her a Letter of Reprimand.
The record shows that Complainant had not engaged in any EEO activity prior to the time of the rating at issue. Complainant's immediate supervisor was the Chief of the Property Management Branch, Office of Management Services (S1). She attested that she did not learn of EEO activity until June 2010. S1 attested that Complainant did not tell her she believed that she was harassed.
Complainant's second level supervisor, the Chief of the Office of Management Service (S2), attested that he became aware of the EEO activity in March of 2010.
Further, the record shows that S1 issued other African-Americans higher ratings and S1 was responsible for the promotion of a number of African-Americans, including Complainant.
Claim One - Rating
The record indicates that during the mid-year review, S1 told Complainant that she was doing "an excellent job." About two weeks after her mid-year review, S1 told Complainant that S1 intended to implement a process that required another employee to review the work of her subordinate employees, including Complainant. Complainant attested that she asked S1 who would review the work of the employee assigned to review her work, and "that that statement caused [S1] to enter into 'hate mode'". Another witness stated that she observed that "everything changed" for Complainant after Complainant questioned the supervisor about her intent to have another person review her work.
The record indicates that the relationship between Complainant and S1 was contentious, but became worse after Complainant disagreed with the supervisor's plan to have another employee review her work. The record shows that the decision impacted Blacks and whites; and the negative conversation occurred prior to the issuance of the subject rating. A witness who testified on behalf of Complainant stated her belief that "everything changed" after Complainant challenged her supervisor's decision to have another employee review her work.
The record shows that Complainant was issued a Fully Successful rating for the period at issue. Her supervisor indicated that she had informed Complainant of the perceived deficiencies and timeliness issues during the mid-term rating. Complainant believed that her rating should have been at the higher "Superior" level, which Complainant received the prior year before her promotion to her current position. S1 attested that she reviewed Complainant's performance based on the higher graded work and thought the rating was accurate.
Complainant's second line supervisor encouraged Complainant to come to talk with him, but attested that he did not change the rating because Complainant did not provide any documentation to support her view that the rating should be changed to a higher level.
Claim Two - Harassment
The record shows that Complainant was given additional assignments, but other employees were also given additional assignments by S1. Complainant was told during her mid-year review by S1 that "We're going to be busy with our new FBMS system. . . I'm going to need you for a lot of projects." Management made attempts to redistribute the work, and those efforts fell on everyone, regardless of race or EEO activity.
The record indicates that S1 told Complainant that she "needed to start thinking" and would attempt to belittle Complainant. S1 acknowledged that she and Complainant "have a little back and forth sometimes" when S1 requests information from Complainant.
With regard to training, S1 attested that Complainant had more training than anyone else in the branch.
With regard to travel, S1 attested that she offered Complainant the opportunity to attend the Federal Fleet Conference, but Complainant did not respond to her offer in time to go. The record shows that Complainant was provided training opportunities and travel opportunities.
The record indicates that S1 discussed Complainant's performance with her co-workers. Several witnesses corroborated that S1 tends to discuss employees with other employees and that she tends to have a circle of favored employees. That circle included all races and those with prior EEO activity.
Claim Three - Reprimand
With regard to the third claim, the record shows that Complainant is a 2-year employee who had no prior disciplinary actions on her record. S2 issued Complainant a reprimand for conduct that occurred on June 4, 2010. Complainant contacted a job candidate who was applying for a position in her division. Complainant shared her view that S1 was a "nasty lady and this office was a terrible place to work. She also sent the candidate a vacancy announcement for a position at another agency. Although Complainant says her intent was benign and misinterpreted, she does not dispute that she made the call. The candidate reported the call to S1, who told S2.
In issuing the reprimand, S2 charged Complainant with inappropriate conduct.
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).
In its decision, the Agency found that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency found that she had not engaged in any EEO activity at the time of the rating; and she did not identify others not of her race who were treated more favorably. The Agency also found that a Fully Successful rating is not an adverse action.
Next, the Agency reasoned that assuming that Complainant established a prima facie case, the Agency found that the Agency present legitimate, non-discriminatory reasons for its actions. Namely, the rating was not raised because S1 found Complainant's work to be lacking and untimely. The Agency stated that the record reflects that the supervisor had informed Complainant of the deficiencies before the final rating.
The Agency acknowledged that Complainant perceived S1 to have a management style referred to as "controlling, dogmatic, vindictive and hostile."
As to the hostile work environment claim, the Agency acknowledged that Complainant had "a less than ideal work environment," but the Agency found this was not because of her protected factors. The Agency found no discrimination.
This appeal followed.
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 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").
Disparate Treatment
Although the initial inquiry of discrimination usually focuses on whether the complainant has established a prima facie case, following this order of analysis is unnecessary when the agency has articulated a legitimate nondiscriminatory reason for its actions. See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from whether the complainant has established a prima facie case to whether s/he has demonstrated by a preponderance of the evidence that the agency's reasons for its actions were merely a pretext for discrimination. Id.; see also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In the instant case, S1 attested that Complainant's work was incomplete and untimely. S1 stated that she had told Complainant what needed to be addressed for a higher rating at her higher grade.
S2 attested that he did not change the rating because Complainant had not provided documentation that her work warranted a higher rating.
S2 attested that the Letter of Reprimand was based on Complainant's perceived misconduct in reaching out to an applicant in a manner that reflected negatively on the workplace. Assuming that Complainant established the elements of her prima facie case, we find that the Agency has articulated legitimate reasons for its actions.
Because the Agency has presented legitimate, non-discriminatory reasons for its actions, the burden shifts to Complainant to show that the reasons are pretext for discrimination. Complainant has not her burden. In her affidavit, Complainant describes professional differences between herself and her supervisor. She believes that the supervisor was in a "hate mode" after Complainant challenged her, but there is no specific evidence of racial animus. The triggering event for the decline in the working relationship was Complainant's challenging S1's decision to have another employee review the work. That decision fell on African-Americans and Caucasians. At the time the decision was made, Complainant had not engaged in any EEO activity.
Consequently, we do not find that Complainant has established that the Agency's stated reasons were a pretext for discriminatory.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. 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. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the 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, 510 U.S. 17 (1993).
We find that the preponderance of the evidence does not show that Complainant was subjected to a hostile work environment because of her race or prior EEO activity. The instant record reflects professional differences and an understandable negative reaction to some of S-1's decisions and her management style. However, Complainant has not show that managements' actions were a violation of Title VII.
For these reasons, we find that the record does not support a finding that Complainant was subjected to unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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 tends 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
March 7, 2013
__________________
Date
2
0120113059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113059