01A22574
03-10-2003
Tamera J. Wilkinson, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Tamera J. Wilkinson v. Department of Transportation
01A22574
March 10, 2003
.
Tamera J. Wilkinson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A22574
Agency No. DOT-4-01-4013<1>
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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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.
The record reveals that during the relevant time, complainant was
employed as a Secretary at the agency's St. Louis, Missouri facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on October 27, 2000, alleging that she was discriminated
against on the bases of disability (Manic Depression, Anxiety, Post
Traumatic Stress Disorder) and in reprisal for prior EEO activity when:
(A) On October 2, 2000, complainant was denied a position description
that corresponds to her job assignment;
On October 2, 2000, complainant was issued a memorandum by her supervisor
(S) regarding expectations in relation to her performance and conduct
at work;
In October 2000, complainant was treated unprofessionally by her
supervisor in that he was very stern, implied that he was too busy to
talk to her, and looked at her with �glaring and hateful eyes�;
In October 2000, her supervisor refused to confirm her attendance at
a seminar scheduled for January 19, 2001;
Complainant was not allowed to attend a conference in Iowa from October
12-14, 2000, whereas her office counterpart was permitted to attend
the conference; and
On October 25, 2000, complainant was issued a written admonishment from
her supervisor.
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 final decision, the agency found no discrimination. Specifically,
the agency concluded that complainant established a prima facie case of
disability discrimination, but failed to establish a prima facie case
of reprisal discrimination. The agency further concluded that agency
officials articulated legitimate, nondiscriminatory reasons for all
of its actions that were not persuasively rebutted by complainant as
pretexts for discrimination.
On appeal, complainant contends that the agency erred when it found no
discrimination and reiterates arguments presented below. The agency
requests that we affirm its final decision.
Complainant has alleged a claim of disparate treatment on the bases of
disability and in reprisal for prior EEO activity. The agency found
that complainant was a person with a disability, having demonstrated
that she had an impairment that substantially limited a major life
activity. Moreover, the agency found that complainant established a
prima facie case of disability discrimination. Therefore, for purposes
of further analysis, we assume, arguendo, and without finding, that
complainant established that she is a qualified individual with a
disability and is entitled to coverage under the Rehabilitation Act.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following this
order of analysis is unnecessary when, as here, the agency has articulated
a legitimate, nondiscriminatory reason for all of its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Claim A
Complainant contends that the agency wrongfully denied her a position
description that corresponds to her job assignment. The record
reveals that on October 2, 2002, complainant returned to work as an
administrative secretary after several months of leave under the
Family and Medical Leave Act (FMLA). The record further reveals
that when she returned to work, complainant was provided a position
description for an administrative secretary position, which was the
same one issued to her when she occupied the operations secretary
position she held prior to going on FMLA leave in May 2002. The agency
responded that the position description covered the normal duties for
both secretarial positions and although some of the duties assigned to
complainant were different than before, she was still under the same
basic position description. The agency further responded that it wanted
to use the position description for both secretarial positions so that
it would have maximum flexibility in getting work done in the office.
Upon review of the record, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. We note that complainant
failed to specify how the position description departed from the range
of job duties expected for an administrative secretary. Moreover, we
determine that the position description broadly reflected the wide range
of duties that complainant could be expected to perform in her position,
which could be done by either an administrative or operations secretary.
We find that complainant failed to demonstrate that the agency's proferred
reason for its action was pretext for unlawful discrimination.
Claim B
On October 2, 2000, complainant was issued a memorandum outlining her
supervisor's expectations regarding her work performance and conduct.
The record reveals that the memorandum contained the protocol for raising
workplace grievances and concerns as well as cautioned complainant that
the agency �will not tolerate excessive, rambling emails or repetitive
interruptions in my workday or the workday or your co-workers.� The
record contains an investigative affidavit from complainant's supervisor
and two higher level supervisors wherein they all attest that complainant
had often sent several lengthy electronic mail messages to persons in the
supervisory chain. One agency official maintained that the volume of
correspondence from complainant was �excessive, the content confusing,
the number of addresses large, and the target audience very senior, as
in the complainant's case, the practice is genuinely disruptive.� Upon
review of the record, we find that the agency articulated legitimate,
nondiscriminatory reasons for its action. We determine that the letter
was not a disciplinary action against complainant, but rather was a
warranted attempt by the agency to prevent complainant from engaging
in conduct that was disruptive and against agency policy. Moreover,
we note that the record reveals that the letter was not retained in
complainant's official personnel file. We further find that complainant
failed to persuasively rebut the agency's proferred reasons for its
actions as pretexts for discrimination.
Claim C
In Claim C, complainant contends that she was subjected to unlawful
discrimination when in October 2000, her supervisor was very stern,
implied that he was too busy to talk to her, and looked at her with
�glaring and hateful eyes.� Upon review, we find that this matter fails
to state a claim of discrimination. An agency shall accept a claim from
any aggrieved employee or applicant for employment who believes that she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). In this matter, complainant failed
to assert how her supervisor's purported demeanor affected the terms,
conditions, or privileges of her employment. Moreover, we find that
the alleged actions in claim C are insufficiently severe or pervasive
to state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999). Consequently, we dismiss Claim C for
failure to state a claim.
Claim D
With regard to complainant's request to attend a one-day seminar, the
record reveals that on October 2, 2000, complainant's supervisor told
her that he would consider her request to attend a one-day seminar for
administrative assistants in January 2001, but she would have to wait
for approval because he did not know what the office situation would
be like in January 2001. The agency maintains that it was cautious
about committing to sending complainant to the seminar in October 2000
because it had very limited travel and training funds and complainant
had just returned from FMLA leave. Upon review of the record, we find
that the agency articulated legitimate, nondiscriminatory reasons for
its actions. We note that the record reveals that complainant went on
leave shortly after her request and no one from the agency attended the
seminar. Further, we find that complainant failed to present any evidence
that the agency's proferred reason was a pretext for discriminatory
animus.
Claim E
Complainant contends that she was not allowed to attend a conference
in Iowa from October 12-14, 2000, whereas her office counterpart was
permitted to attend the conference. Complainant's supervisor responded
that another secretary was approved to attend the conference because
that secretary had done preparation for the conference. We find that
the agency articulated legitimate, nondiscriminatory reasons for its
actions. We note that complainant had just returned from FMLA leave less
than two weeks before the conference and had attended the conference in
the past. We further find that complainant failed to persuasively rebut
the agency's proferred reason for its action as pretexts for unlawful
discrimination.
Claim F
Complainant acknowledges in her investigative affidavit that on October
19, 2000, she forwarded an electronic mail to her supervisor and
upper-level management �asking for relief in regard to several issues�
and for her supervisor to discontinue his �unprofessional supervisory
technique.� The record discloses that on October 25, 2000, complainant's
supervisor issued a written admonishment to complainant for going outside
the chain of command for raising such issues. The agency contends that
instead of only sending the message to her second-line supervisor, which
would have permissible once she exhausted concerns with her immediate
supervisor, complainant impermissibly sent the message to upper level
management that is not within her chain of command. We note that only
three weeks before sending this letter, complainant's supervisor warned
her in a letter of expectations not to send electronic messages about her
workplace grievances to persons outside her chain of command. After a
review of the matter, we find that the agency articulated legitimate,
non-discriminatory reasons for its actions that were not persuasively
rebutted by complainant as pretexts for unlawful discrimination.
Therefore, after a careful 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 final agency
decision for the reasons set forth in this 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
_March 10, 2003_________________
Date
1 The FAD incorrectly identifies the agency no. as 4-01-4007.