01A12297_r
09-26-2002
Rose M. Hannah, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Rose M. Hannah v. Department of the Treasury
01A12297
September 26,. 2002
.
Rose M. Hannah,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A12297
Agency No. AL900010286
DECISION
INTRODUCTION
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
ISSUE PRESENTED
The issue presented in this appeal is whether complainant proved, by
a preponderance of the evidence, that she was discriminated against
or harassed because of her race, color, sex, age, or in reprisal for
previous EEO complaint activities during a series of events that occurred
from November 9, 1997 through December 14, 1998.
BACKGROUND
The record reveals that from November 9, 1997 until November 7, 1998,
complainant was first employed as a Child Development Director, on a
one-year probationary status, at the agency's Ranchvale Child Development
Center (CDC), Family Member Support Flight, 27th Services Squadron,
Cannon Air Force Base facility. On November 3, 1998, complainant was
involuntarily reduced in grade as a result of failing to complete her
supervisory probationary period. From November 8, 1998 through December
18, 1998, complainant worked as a Training Technician in the agency's
Youth Activities Center, in the same squadron. During the collective
time period, complainant was managed by three different supervisors.
Complainant sought EEO counseling regarding her allegations of
discrimination and harassment and filed three formal complaints on
November 23, 1998 (agency complaint number CD1C99001), December 16,
1998 (agency complaint number CD1C99002), and January 11, 1999 (agency
complaint number CD1C99003). In the complaints, complainant asserted
she was harassed and discriminated against on the bases of race, color,
sex, age, and reprisal for prior EEO activity when:
(1) During the month of September 1998, complainant's first supervisor
(S-1) allegedly changed one of her worker's positions without her
knowledge, leaving complainant without a cook for about six weeks;
during the period in question, complainant was allegedly not informed
of meetings she felt she should have attended;
on October 16, 1998, complainant's second supervisor (S-2) required a
leave slip from complainant when she had already worked a full day;
complainant alleged that she was being harassed because of an email
she had sent to S-2 on October 14, 1998;
during the period in question, specifically during complainant's
vacation in September 1998, complainant's supervisors (S-1 and S-2)
allegedly conducted walk through inspections of complainant's facility
when she was absent;
during November 1997 through July 1998, complainant allegedly did not
receive requested or adequate training;
on April 10, 1998, complainant asked and allegedly did not receive
feedback from S-2 regarding her initial performance appraisal signed
the same day;
S-2 allegedly did not visit complainant's center until October 13,
1998, when he would allegedly visit others' centers regularly;
S-2 allegedly did not interact with complainant, but he allegedly did
interact with others by taking them around other centers and to lunch;
in April 1998, S-2 allegedly commented to another person that complainant
lacked knowledge in child care;
complainant allegedly did not receive adequate assistance from an Air
Force consultant in preparing for an inspection, when another facility
had the consultant for all but two hours per week;
S-1 allegedly made a statement during complainant's April 1998
performance appraisal meeting that she did not see complainant's
performance as changing a lot at the end of the probationary period;
in May 1998, the Deputy Services Commander allegedly did not respond
to complainant's inquiry regarding organizational structure, her status
as a director, and her lack of training;
complainant was allegedly not provided performance feedback which she
requested from S-2 after her March 1998 appraisal and until her November
1998 appraisal;
in November 1998, complainant received an "Unacceptable" performance
and promotion appraisal, a rating with which she disagreed and which
led to her removal from the position of Director;
on November 3, 1998, complainant was removed from her position at the
Ranchvale Child Development Center; and
on December 14, 1998, complainant was given a memo by her third
supervisor (S-3) requiring 24-hour notice from complainant prior to
approving any absence from work to conduct official business concerning
personal issues, i.e., to pursue and prepare for her EEO complaints.
On December 14, 1998, January 13, 1999, and February 5, 1999, the agency
sent complainant a Notice of Partial Acceptance of each of her formal
discrimination complaints. At the same time, the agency requested an
investigation of the accepted issues of the complaints. In response,
on January 19, 1999, February 19, 1999, and March 18, 1999, complainant
filed an appeal challenging the dismissal of issues from each complaint.
On October 27, 1999, the agency's EEO counselor submitted a request for a
consolidated investigation of the three complaints. In December 1999, the
EEOC administratively closed the three appeals initiated by complainant
because the remaining open issues were pending before the agency.
On April 28, 2000, the Department of Defense Civilian Personnel Management
Service, Office of Complaint Investigations (OCI) issued notification
that the investigation of the complaints had been completed. On May
6 and May 12, 2000, complainant received the notification of rights,
reports of investigation (ROI), and investigative files. Because of
the nature of the issues, three separate ROIs were issued. On June
5, 2000, complainant requested a hearing before an AJ, pursuant to 29
C.F.R. � 1614.108(f). On August 2, 2000, the Phoenix District EEOC
Office returned the request to complainant with a letter identifying
deficiencies in the request. Complainant was advised of her right
to refile her corrected request within ten days but did not refile.
On January 19, 2001, the agency issued its final decision.
In its FAD, the agency consolidated the separate, alleged discriminatory
incidents into a single issue of disparate treatment in the form
of harassment, determining that complainant's list of allegations
was intended to show the "broader issue of an alleged on-going
(sic) course of harassment motivated by prohibited discrimination."
The agency addressed each claim and concluded that while the agency
articulated legitimate, nondiscriminatory reasons for their actions,
complainant failed to establish, by the preponderance of the evidence,
that the agency's conduct was nonetheless pretext for discrimination,
or that the disputed matters were motivated by unlawful discrimination.
Complainant makes no contentions on appeal. The agency requests that
we affirm its FAD.
ANALYSIS AND FINDINGS
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, 441 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. Water, 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 Veteran
Affairs, EEOC Request No. 05950842 (November 13, 1997). Therefore, we
assume, arguendo, that complainant properly established a prima facie
case of harassment and discrimination based on race, color, sex, age,
and reprisal.
Discussion of the Agency's Articulated Reasons for its Actions
We find that in addressing the claims the agency provided clear,
documented support that its actions were legitimate and nondiscriminatory.
Complainant asserted in claim 5, for example, that she did not receive
adequate or requested training. In response, the agency highlighted
multiple instances in the record where complainant received many
opportunities to train. The record reflects, in fact, that complainant
received more formal and on-the-job training than she suggested in
her complaints. In addition, as S-1 suggested in her affidavit, there
is no indication that complainant submitted a formal training request
at any time during her tenure as director. Complainant identified
in her affidavit several dates that she had requested for training,
but she failed to specifically describe the training she was seeking
or the steps she took in an attempt to secure it. Moreover, even if
complainant had only informally requested training, the agency's reasons
explaining why she did not receive it are reasonable and do not appear
to be based on anything other than circumstances arising from the normal
course of business.
In another instance, complainant claimed that S-1 changed a subordinate
worker's position without complainant's knowledge, leaving her without
a cook for six weeks (claim 1). The record clearly shows that this
assertion is untrue. Complainant, in fact, was the person who submitted
and signed the paperwork to initiate the change, as S-1 had testified.
Even in cases where the disputes over the specific incidents could not
be substantiated by anyone other than the direct parties involved (for
example, claims 6 and 12), we determine that the agency's articulated
reasons were legitimate and nondiscriminatory. Furthermore, while
the agency made comments that could have been construed negatively by
complainant, for instance, in claims 9 and 11, where supervisors revealed
their lack of confidence in complainant's abilities, or even in the case
where the agency failed to perform its obligation to conduct quarterly
performance feedback meetings as required for supervisors placed on
probationary status (claims 6 and 13), the Commission will not second
guess the agency's business decision in this matter unless complainant
can establish that such action was prompted by discriminatory animus. See
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); see
also Schaeffer v. Department of Transportation, EEOC Appeal No. 01A10518
(February 14, 2001).
The Commission's federal sector jurisprudence has generally held that
an employer has the discretion to determine how best to manage its
operations and may make decisions on any basis except a basis that
is unlawful under the discrimination statutes. Furnco Construction
Co. v. Waters, supra; Nix v. WLCY Radio/Rayhall Communications, 738
F.2d 1181 (11th Cir. 1984). Thus, an employer is entitled to make its
own business judgments. The reasonableness of the employer's decision
may of course be probative of whether it is pretext. The trier of fact
must understand that the focus is to be on the employer's motivation,
not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6
(1st Cir. 1979). Based on our discussion above, we determine that the
agency produced sufficient and reasonable evidence for us to conclude
that its actions were not based on unlawful discrimination or harassment.
Discussion of Pretext
Because of our finding that the agency articulated legitimate,
nondiscriminatory reasons for its actions, we next look to determining
whether complainant established that the agency's articulated reasons
were motivated by discrimination. 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); Burdine, 450 U.S. at 256; Holley
v. Department of Veterans Affairs, supra; Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995). Although the burden
of production may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on the complainant. Burdine,
After a careful review of the record, the Commission agrees with
the agency's finding that complainant failed to establish pretext.
Assuming that complainant established a prima facie case of harassment and
discrimination regarding her sixteen claims, she did not present evidence
that, more likely than not, the agency's articulated reasons for its
actions were a pretext for harassment or discrimination based on race,
color, sex, age or reprisal. In reaching this conclusion, we note that
our review of the factual record for each claim and the agency's thorough
discussion of complainant's contentions shows that complainant has not
disproved the agency's articulated reasons for its actions in each case.
Regarding the agency conduct described in claims 13, 14, and 15,
complainant asserted that the agency's failure to provide performance
feedback resulted in her unacceptable performance rating that ultimately
served to remove her from her director position. As we noted above,
the Commission will not question an agency's business decisions unless
complainant can show that such conduct was prompted by discriminatory
animus. See Burdine, 450 U.S. at 259; see also Schaeffer v. Department
of Transportation, supra. In this instance, although the complainant
suffered a substantial harm, namely removal from a higher-graded and
higher-paying position, there is no indication in the record that the
agency was motived by discrimination. The agency did not formally
provide complainant quarterly performance feedback, however, there
are numerous instances in the record that show that complainant's
supervisors routinely provided critiques of her work. The rationale
given by complainant's chain of command regarding her November 1998
performance appraisal is also fully supported by the record and reflects
that their decision to rate complainant as unsatisfactory was based
on specific work objectives known and unmet by complainant. Finally,
complainant states that she was removed from her position without an
opportunity to "demonstrate an acceptable performance level as directed
in AFI 36-1001." The record suggests that the agency was not required
to place a probationary employee on a performance improvement plan
in an attempt to improve her work performance. We find, therefore,
that the agency acted consistent with reasonable business judgment,
and that complainant failed to otherwise show that the agency's actions
were tainted by a discriminatory motive on a protected basis.
Considering the entire record and the context in which the conduct
occurred, we find that complainant was not subjected to disparate
treatment or harassment as claimed. In addition, in applying the Harris
hostile environment factors (see Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993))<1>, we find that the alleged events fail to rise to
the level of severity sufficient to establish a hostile or abusive work
environment claim. Finally, we find that complainant has not shown that
a nexus exists between her claims of harassment or discrimination and
her race, color, sex, or age, or between complainant's prior protected
activity and the adverse treatment at issue in her reprisal claims.
Therefore, after a careful review of the record, including the agency's
response, and arguments and evidence not specifically addressed in this
decision, we find there was no discrimination and AFFIRM the agency's
final decision.
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 26, 2002
__________________
Date
1 The trier of fact must consider all of the circumstances, including
the following: the frequency of the discriminatory 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.