0120083028
09-17-2008
Monica J. Beer, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Monica J. Beer,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120083028
Agency No. F-06-6297
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 29, 2008 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.
During the period at issue, complainant was employed as an Employee
Assistance Counselor (EAC) at the agency's Employee Assistance Unit,
Federal Bureau of Investigation (FBI) in Washington, D.C. The record
reflects that before her employment with the agency, complainant worked
for the Department of Veterans Affairs (VA) in New Orleans, Louisiana
and Washington D.C.
On December 6, 2006, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On March 16, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against
her on the basis of sex (female) when on November 7, 2006, she was
advised that she was not afforded the same compensation package, such
as a recruitment bonus and temporary use of a government vehicle, as a
recently hired male co-worker for the same position.
Complainant also alleged that she was subjected to harassment and a
hostile work environment based on a disparity in pay between her and a
male co-worker.
On April 25, 2007, the agency issued a partial dismissal. Therein,
the agency accepted for investigation complainant's November 7, 2006
allegation that she was not afforded the same compensation package,
such as recruitment bonus and temporary use of a government vehicle,
as a recently hired male co-worker for the same position. The agency,
however, dismissed complainant's harassment claim for failure to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically,
the agency determined that this claim was neither sufficiently severe
nor pervasive to state a hostile work environment claim. The agency
notified complainant that if she disagreed with its decision not to
accept her harassment claim, she should inform the agency in writing
within 15 calendar days of her receipt of this letter.
By letter dated May 16, 2007 to the agency, complainant disagreed with
its decision not to accept her harassment claim. Complainant listed the
following allegations as examples of how she was subjected to a hostile
work environment on the basis of sex when:
(1) during March and April 2006, she was not allowed to participate in
critical incident activities or complementary trainings; and
(2) sometime in March 2006, her request to speak at a conference to
which she had been invited was denied.
Complainant also alleged that she was subjected to harassment by her
supervisor when he made comments towards her, and negative shrugs and
eye rolls in reference to the senior-level female employees.
On July 10, 2007, the agency issued a second partial dismissal. Therein,
the agency dismissed complainant's harassment claims (claims 1 - 2) on
the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). The agency stated, however, claims 1 - 2 would be
considered as background information to the accepted claim regarding her
compensation package. The agency also dismissed complainant's allegation
that she was subjected to harassment, finding that she was not aggrieved.
Specifically, the agency determined that the supervisor's comments to
be isolated incidents. Furthermore, the agency found that the comments
were not sufficiently severe or pervasive as to rise to the level of
stating a claim of harassment.
At the conclusion of the investigation of the November 7, 2006 claim,
complainant was provided with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ) or accept a final agency decision. Complainant requested
a final agency decision. In accordance with complainant's request,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the agency found no discrimination.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 575 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The agency correctly determined that complainant did not present evidence
indicating that the agency's actions were motivated by complainant's
sex. Moreover, the agency articulated legitimate, nondiscriminatory
reasons for its actions, and that complainant did not show that the
agency's articulated reasons were a pretext for discrimination.
Specifically, the agency indicated that concerning complainant's
allegation that she was not afforded the same compensation package as a
recently hired male co-worker for the same position, the record evidence
showed that EACs hired at the GS-13 level had to be "fully licensed
clinical medical health professional[s]." The agency stated that at the
time complainant was hired, she was not yet licensed. The agency further
stated that according to complainant's supervisor (S1), complainant
"was not yet fully licensed and therefore not qualified at the grade
thirteen level." The agency stated that complainant subsequently
received her license and was promoted to the GS-13 level. The agency
stated that the identified male co-worker (C1) was already licensed when
he was hired by the agency and entered on duty at the GS-13 level.
Regarding complainant's allegation that C1 received preferential
treatment when he was hired through the direct-hire process while
she went through the competitive process, S1 denied it. S1 stated
that he actively recruited complainant for an EAC position, and was the
selecting official for her appointment to the FBI. S1 further stated that
complainant "had been highly recommended by a college professor of hers
with whom the FBI had positive association." S1 stated that during the
relevant time, he advised complainant "to apply through the current FBI
hiring process method, Quickhire. At that time there was an all-source
and government status EAC 12/13 posting pending or active and therefore
other methods were not available." S1 stated that direct hire authority
does not apply to government status employees, while lateral hire between
government agencies is only possible from a similar position and grade,
including career potential. S1 stated that complainant was a career
employee with the VA "precluding use of direct hire authority."
Further, S1 stated that he used the direct hire authority for C1 because
during the relevant time the EAU "was experiencing a critical shortage
of EACs. Of the five EAU EAC positions, one had transferred to the
field, one had lateraled to the Department of State, one was seriously
ill, and one had given a thirty day notice of retirement. This was at
the time of [Complainant's] Entrance on Duty (EOD)." S1 further stated
"faced with an expected delay of well over a year to fill the now three
vacancies of five, I petitioned the FBI Personnel Officer to extend
the Direct Hire authority for [C1] for one of the vacancies in EAU.
Permission was granted." S1 stated that C1 was hired at the GS-13
level because he was fully licensed, having earned his doctoral degree,
attained his supervised clinical experience, and passed the national
examination several years prior.
Regarding complainant's allegation that C1 received preferential
treatment when he received a recruitment bonus, S1 stated that he
sought additional pay incentives for C1 "to offset the substantial pay
decrease he would incur and ensure his acceptance of the position."
S1 stated, however, that management notified him that a recommendation
for a recruiting bonus would be more appropriate. S1 stated that he
then submitted a request for 25% recruitment bonus and his request
was approved. S1 stated "following year requests for up to 25% a
retention bonus can be requested for all employees for like cause as
the recruiting bonus. It is not intended as a pay bonus, but rather
to prevent the loss of highly experienced and specialized personnel."
S1 stated that he previously requested a superior qualification increase
for an identified male physician from the United Nations "who had over
twenty years of experience as a mental health professional." S1 stated
that he also requested a retention bonus for an identified female Medical
Officer, a highly experienced and specialized professional from the VA
"for four or more years." S1 stated that he did not treat complainant
"differently than any other new employee, to include [C1]."
Regarding complainant's allegation that when she confronted S1 about
C1's recruitment bonus S1 responded that he did so because C1 was a
man, S1 stated that he does not recall making the comment. S1 stated
"I did expect [Complainant] to understand, even if not agreed with, the
rationale for the actions, given the significant difference in their
training and experience. If said, a comment by me as alleged would
have been made in a joking manner." Furthermore, S1 stated that "given
my occasional use of sarcasm, I can even see the comment as possible,
however, without the intent suggested."
Regarding complainant's allegation that she had to wait several weeks
before she was provided access to the computer system, S1 stated that
upon complainant's initial arrival to the EAU he instructed an identified
employee to submit a request for complainant "to obtain computer access
in the same manner as I have done for all new employees or Unit computer
requests." S1 stated that the request cannot be made in advance of
any employee's arrival and the Unit has no control over the length of
time for completion. S1 stated that complainant was "presented with the
information available to use on computer contacts and process. She took
the initiative and I believe her persistence ultimately resulted in her
obtaining the computer access sooner than otherwise would have been the
case."
Regarding complainant's allegation that S1 let C1 use an agency vehicle
to assist him in moving his office belongings, S1 acknowledged offering
C1 the use of the unit's van "in order for him to transport his work
belongings to the office." Specifically, S1 stated that "in discussion
[of] his move from California to Washington D.C., it was clear [C1] had
a number of logistical problems in getting his work related belongings
into the building. Options that involved his personally owned vehicle or
local parking would all have resulted in the use of other personnel or
more of his time away from the office." S1 acknowledged not making the
same offer to complainant. S1 stated that complainant "never expressed
concerns to me regarding transportation of her work belongings, the topic
did not come up, and [Complainant] was already living in the Washington,
D.C. area when hired."
Because the agency has proffered legitimate, nondiscriminatory reasons for
the identified events, complainant now bears the burden of establishing
that the agency's stated reasons were merely a pretext for discrimination.
Shapiro v. Social Security Administration, EEOC Request No. 05960403
(December 6, 1996). Complainant can do this by showing that the agency
was motivated by a discriminatory reason. Id. (citing St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993)). The Commission finds that
complainant failed to present evidence to support a finding or create an
inference that the agency's articulate reasons its actions are a pretext
for discrimination on the alleged basis of sex.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 17, 2008
Date
1 On appeal, complainant does not challenge the April 25, 2007 and July
10, 2007 partial dismissals issued by the agency regarding her harassment
claims (disparity in pay between her and a male co-worker; during March
and April 2006, she was not allowed to participate in critical incident
activities or complementary trainings; and sometime in March 2006,
her request to speak at a conference to which she had been invited was
denied). Therefore, we have not addressed these issues in our decision.
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0120083028
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120083028