Patricia A. Starke, Complainant,v.Ann M. Veneman, Secretary, Department Of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 25, 2002
01A10795 (E.E.O.C. Sep. 25, 2002)

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.