01A10795
09-25-2002
Patricia A. Starke, Complainant, v. Ann M. Veneman, Secretary, Department Of Agriculture, Agency.
Patricia A. Starke v. Department of Agriculture
01A10795
September 25, 2002
.
Patricia A. Starke,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department Of Agriculture,
Agency.
Appeal No. 01A10795
Agency Nos. 980237,
990045
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint 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. Complainant alleged that she was discriminated
against on the bases of her race (African-American) and reprisal for
prior protected activity under Title VII when the Rural Development
Manager (R1):
(1) denied her overnight travel to the Accomack area office, in May
and June 1997;
denied her the opportunity to attend training;
denied her request to use annual leave on November 21, 1997;
failed to assign her to work in a private office; and,
allowed a lower-ranked employee to assign her work.
Additionally, complainant alleged that R1 has subjected her to retaliatory
harassment by sending her several negative letters regarding her
performance.<1>
The record reveals that during the relevant time, complainant was
employed as a Rural Development Technician, GS-1101-7, at the agency's
Colonial Heights, Franklin, Virginia Area Office, Rural Development,
Rural Housing Service. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on October 22, 1998. As relief, complainant requested
compensatory damages, a restoration of all sick leave used in connection
with this complaint, attorney's fees, and the removal of R1. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant requested that
the agency issue a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of discrimination based on her race and prior EEO activity.
The FAD further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The FAD concluded that
complainant did not meet her burden of demonstrating that the letters
were motivated by an intent to retaliate or discriminate against her.
On appeal, complainant contends, through her attorney, that the FAD's
conclusions are erroneous. In particular, complainant argues that:
(1) R1's contention that her work at Accomack was not extensive
enough to require overnight travel, is factually incorrect; (2) both
individuals selected for the Windows Internet training were Caucasian;
(3) while complainant was, in fact, given permission to attend the
AIS Automation training, she could not go because R1 did not make the
necessary arrangements and her African-American co-worker (C1) was not
permitted to attend several of the training sessions that were offered;
(4) the FAD contained several factually incorrect assertions regarding
training; (5) as to the denial of annual leave request, other co-workers,
not in complainant's protected class, have been granted leave on more
Fridays than she has;<2> (6) contrary to R1's statement that another
employee needed the private workspace (instead of complainant) because of
her heavy workload, the individual in question did not have an unusually
heavy workload; (7) contrary to R1's contention that complainant did
not have any prior work experience and, therefore, needed to be trained
by a lower-ranked employee, complainant had approximately twenty years
of experience in the Local Office in the technical/clerical area; (8)
she did not deserve to have the negative letters issued to her; and (9)
R1 fabricated several of his statements. The agency requests that we
affirm its FAD.
Disparate Treatment
As an initial matter we note that, as this is an appeal from a FAD
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). 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). He must generally establish a prima facie case
by demonstrating that he 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, 576 (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).
Assuming, arguendo, that complainant established her prima facie case of
discrimination, we turn to the agency to articulate legitimate reasons
for its actions. The agency articulated the following reasons:
Overnight Travel
As to the denial of overnight travel, R1 stated that the type of work
that complainant performed in the Accomack area office was not extensive
and would not require a full day of work. See Record of Investigation
(ROI), Ex. F6. Additionally, R1 checked with the State Director's Office
regarding complainant's overnight travel authorization, and was advised
that funds were limited. Id.; see also Ex. 27, 30. R1 explained that in
a similar situation, he and other staff members did not receive overnight
travel authorization when they traveled to the Accomack area office.
Id. He stated that on the occasions when the similarly situated Rural
Development Specialist (Caucasian) and the Rural Development Assistants
(Caucasian) received overnight authorization to this location, it was
because they were required to do different, more extensive and detailed
work. Id.
Training
As to the denial of AIS Automation and Windows Internet training, R1
stated that the employees were selected because they were co-systems
managers. Id.; see also Ex. 27. The individual who recommended
candidates to the State Director (SD) gave the same explanation for
the selection. See ROI, Ex. 25. Additionally, although R1 admits
that the AIS training would have helped complainant in her job, he
explained that complainant had just arrived on the job and the Rural
Development Assistants who had been selected had been approved prior to
complainant's arrival. Id. As to the Windows Internet training, R1 states
that, although the decision not to select complainant was not within his
control, he hypothesizes that complainant was not selected because the
training was not directly related to her job duties. Id. R1 also noted
that complainant has been permitted to attend training relevant to her
job, and has been given significant on-the-job training. Id.
Leave Request
R1 explained that he denied complainant's leave request for November 21,
1997, because it was unfair to the office for complainant to request
to use leave for almost every Friday. R1 also cited the necessity
to insure requisite office staffing levels on the dates in question.
Complainant's remaining leave requests were all approved. Id.
Work Station
As to the failure to assign complainant a private office, R1 explained
that prior to her arrival, the Rural Development Assistant (RDA)
was assigned a private work office due to her heavy workload. When
complainant joined the staff, R1 decided to leave RDA in the private
office because the office was scheduled to move to a different location
in the near future. Because the office move was postponed several times,
RDA and complainant exchanged offices before the office was relocated
in March 1998. Id.
Assignment of Work by Lower-Ranked Employee
R1 noted that before complainant's appointment, she was informed that
RDA would provide her on-the-job training. RDA assigned complainant
typing and filing duties because it was part of her training for a
tenant certification program. Id. R1 states that it was appropriate
for RDA to provide complainant work because she had extensive knowledge
of the office's operations. Id. Additionally, R1 stated that it was
the SD's decision to request RDA to provide training to complainant.
Although complainant has presented several challenges to the agency's
reasons, she has not met her burden of establishing that more likely
than not, the agency's reasons were pretextual.
Retaliatory Harassment: Negative Letters
Harassment of an employee that would not occur but for the employee's
protected activity under the anti-discrimination statutes is unlawful,
if it is sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d
1129, 1138-1139 (D.C. Cir. 1985). In order to prove a case of harassment,
the complainant must establish, by a preponderance of the evidence,
the existence of five elements: (1) she is a member of a statutorily
protected group; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected group; (3)
the harassment complained of was based on membership in the statutorily
protected group; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with her work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) that there is a basis for imputing
liability to the employer. McLeod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999).
After a careful review of the evidence of record, we are not persuaded
that complainant has established that the letters were issued because of
her membership in a protected class. See Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000); Applewhite v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01994939 (April 6,
2000); Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998); EEOC Guidance on Investigating, Analyzing Retaliation
Claims, No. 915.003 (May 20, 1998).
Therefore, after a thorough 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
September 25, 2002
__________________
Date
1 Such letters include letters for
insubordination on May 23, 1998, letters regarding her work assignments
on May 23, 1998, and April 29, 1998, and letters regarding her work
performance on April 17, 1998.
2 The Record of Investigation (ROI) indicates that a reason given to
complainant for the denial of leave was that it was not fair to give
her leave almost every Friday.