0120121772
05-10-2013
Mirna Reyes-Bible, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Mirna Reyes-Bible,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120121772
Agency No. RD201000468
DECISION
On March 12, 2012, Complainant filed an appeal from the Agency's February 9, 2012, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
Complainant was a GS-13 Senior Loan Specialist with the Agency, assigned to the Multi-Family Housing unit in Washington, DC. However, during the time of the alleged events, Complainant was under the supervision of the Multi-Family Housing Director (S1) and the Program Outreach Coordinator (POC) in Davis, California.
On June 21, 2010, Complainant filed an EEO complaint alleging that she was subjected to discrimination on the bases of race (African-American), national origin (Hispanic), sex (female), and age (59) when:
1. on February 15, 2010, her supervisor (S1) called her into his office to insist that she clean up his messy desk;
2. on February 19, 2010, S1 referred to her as a hysterical female who reminded him of his wife, told her that she would never fit in at the office, and asked if she planned to retire soon;
3. on February 19, 2010, S1 informed her that he had directed other employees to "stand down" on any directives from her;
4. in February 2010, her Loan Specialist duties were taken away from her after she attempted to raise EEO concerns with management and she was moved away from her desk into a small, noisy cubicle;
5. on unspecified dates, S1 sent an email nationwide to Agency employees and outside entities stating that Complainant had been removed for cause from her position as Loan Specialist and that communication with her should be avoided; and
6. on unspecified dates, she was excluded from staff.
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.
The instant 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").
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination on any alleged basis, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter. Complainant alleged that S1 insisted that she clean his messy desk, called her a hysterical female, told her that she would never fit in and asked if she planned to retire soon. According S1, he asked Complainant to file paperwork in the appropriate places and found that many of the papers in his office belonged to her. S1 testified that he wanted Complainant to move her papers because they were not filed properly. S1 denied telling Complainant to clean his desk, calling her a hysterical female or telling her that she did not fit in. S1 also denied questioning her retirement plans. The record indicates that Complainant complained to S1's supervisor, the State Director (SD) about S1's conduct toward her as referenced above. According to the SD, shortly after she began working in her position, she observed that Complainant and S1 had a personality conflict.
Based on the poor working relationship between Complainant and S1, and based on Complainant's desire to work full-time in the Agency's tribal program, SD said she transferred Complainant to the position of Tribal Coordinator. As the Tribal Coordinator, Complainant reported to the POC and not S1. After Complainant's transfer, the record indicates that S1 requested that Complainant not attend staff meetings in his area and emailed the National Office of the Multi-Family Housing Specialists, advising them that Complainant's name should be removed from the email list because she no longer worked in the Multi-Family unit. In addition, after Complainant left the Multi-Family unit, S1 sent an email informing customers that Complainant was no longer the point of contact for their concerns, in order to avoid any confusion.
Management witnesses further asserted that Complainant's performance as Tribal Coordinator was deficient as she did not perform much work, made little or no contact with the tribes and performed inadequate outreach activities. Complainant advised SD that she wanted to retain her skills as a Loan Specialist. At that time, the Agency's Single-Family home program was experiencing growth and required additional staff. The SD testified that she believed it would be a better fit for Complainant as she had demonstrated that she could not handle the duties of the Tribal Coordinator position. Complainant agreed to be reassigned to the Single-Family housing group and was transferred to another office. According to the Agency witnesses, she was provided with a cubicle identical to the one she previously occupied.
After careful review of the record, we find that Complainant failed to prove, by a preponderance of the evidence, show that the responsible official's proffered reasons were pretext for discrimination.
To the extent that Complainant alleges that the Agency's conduct, constituted discriminatory harassment, the Commission notes that 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. U.S. Postal Serv., 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 Sys., Inc. at 3, 9 (March 8, 1994). After a review of the record, the Commission finds that Complainant's claims do not constitute discriminatory harassment. As already discussed, Complainant has not proven that the Agency's actions were unlawfully motivated by her protected classes. Accordingly, Complainant has not shown that she was subjected to a discriminatory hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding 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
May 10, 2013
__________________
Date
2
0120121772
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121772