01A13794
08-19-2002
Usha R. Nain, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Usha R. Nain v. Department of Veterans Affairs
01A13794
August 19, 2002
.
Usha R. Nain,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13794
Agency Nos. 20041097 & 20041961
DECISION
Usha Nain (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.
The record reveals that during the relevant time complainant was employed
as an Accounting Technician at the agency's Martinsburg, West Virginia
Medical Center. Complainant sought EEO counseling and subsequently filed
a formal complaint on June 14, 2000 alleging that she was discriminated
against:
on the bases of sex (female) and national origin (Indian) when she
was not selected for an accountant position on November 12, 1999
(Position 1);
on the bases of race (Asian-Indian), and national origin and subjected
to retaliation for prior EEO activity (under Title VII) when she was
not selected for the position of Budget Analyst on February 10, 2000
(Position 2);
3) on the bases of race, color (unspecified), sex, and age (55 at the
relevant time), and prior EEO activity when she was not selected for
a purchase card technician position on May 1, 2000 (Position 3);
4) on the bases of sex, race, color, age, and prior EEO activity when
she was not selected for an accounting position in May 2000 (Position 4);
5) on the bases of sex, race, color, age and prior EEO activity when she
was harassed by her supervisor in June 2000 and ongoing when demeaning
remarks were made about her and her nationality, creating a hostile
work environment; and
6) on the bases of race, color, sex, age, and prior EEO activity when
her performance appraisal was lowered by her immediate supervisor in
June 2000.
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 first noted that complainant's original complaint
also included allegations that she was denied promotions going back
five years or more and that she was denied training. The agency stated
that these allegations had been dismissed as untimely and for failing
to state a claim. The agency noted that complainant did not contact an
EEO counselor within 45 days of any selection other than those described
above and that complainant failed to indicate specific training that she
was denied, or specific dates for that training or for any non-selections
other than those accepted for investigation.
Turning to those issues accepted for investigation, the agency first
determined that complainant failed to establish that she was subjected
to a hostile work environment. In so finding, the agency noted that
although complainant's April 1999-March 2000 performance appraisal
did contain negative remarks concerning her work performance and that
complainant had received counseling regarding her work, there was no
evidence that improper racial, gender, or ethnic slurs had been directed
towards complainant. The agency noted that although one supervisor (SO2)
acknowledged that she had advised complainant to take an English course,
SO2 testified that this suggestion was made in response to complaints
from vendors, who reported that they could not understand complainant.
The agency concluded that there was insufficient evidence to establish
that the actions complainant described rose to the level of severe or
pervasive conduct, or that any of the actions were based on her membership
in a protected group.
The agency then applied a disparate treatment analysis to each of
complainant's allegations. The agency found that complainant established
a prima facie case of discrimination on several bases in regard to each
of the non-selections, noting that she applied and was qualified for
each position,
but was not selected in favor of applicants outside her protected
groups.<1> The agency also determined that complainant established a
prima facie case of retaliation in regard to the performance appraisal
issue, but offered no evidence to raise an inference of sex, race,
national origin or age discrimination on that issue. Turning to those
incidents that complainant described as harassment, the agency noted
that complainant made out a prima facie case of retaliation in regard
to performance counseling sessions and the requirement that she keep a
log of vendor calls she received beginning in June 2000.
The agency then determined that management articulated legitimate
non-discriminatory explanations for all of its actions. In regard
to the non-selections, the management officials involved testified
that they selected the best qualified applicant for each position.
Specifically, the recommending official (RO) for the positions
testified that for Position 1, she recommended the selection of the
applicant whose application revealed the most accounting experience.
The selecting official (SO) also testified that the selectee (S1) had
extensive accounting experience and that he selected her for that reason.
For Position 2, RO and other officials involved in the selection process
testified that each applicant was interviewed and given a score and
that the individual with the highest score was selected (S2). In regard
to Position 3, RO testified that two applicants at the GS-6 level and
three at GS-5 level applied. Because she determined that the two GS-6
applicants had the necessary purchasing experience, the GS-5 applicants,
including complainant, were not considered. SO confirmed that the
selectee (S3) had extensive purchasing experience and better references
than the other applicant who was considered. Finally, in regard to
Position 4, the record establishes that this position was actually a
Civilian Pay position, as opposed to an accounting position, and that
the selection was made in April 2000, not May 2000. The management
officials involved in the selection process testified that the selectee
(S4) received the highest score and was therefore selected.
Turning to the performance appraisal and performance counseling issues,
complainant's supervisor (RO) testified that the appraisal included valid
concerns regarding complainant's work. RO noted that she had verbally
counseled complainant throughout the year due to problems complainant was
having completing her work in an accurate manner. RO further noted that
although complainant alleged that she was denied extra work that would
have readied her for promotion, complainant was unable to accurately
complete her assigned work and was therefore not assigned anything more.
RO also noted that she told complainant to keep a log on her interactions
with vendors because complainant told her that complainant was unable to
do other work based on the length of time she spent dealing with vendors.
The agency concluded that complainant failed to establish that these
explanations were a pretext for discrimination or retaliation. In so
finding, the agency reviewed the rating factors for each position
and discussed complainant's application and the applications of those
selected. The agency noted that even assuming that complainant was
correct that some of the selectees were pre-selected, complainant
offered no evidence that any of the selections were motivated by a
discriminatory or retaliatory animus. The agency noted that the only
evidence complainant offered to establish that she was subjected to
discrimination was her own belief, and that she therefore did not prove by
a preponderance of the evidence that she was subjected to discrimination
or retaliation.
On appeal, complainant essentially reiterates arguments she raised
throughout the investigation. She notes that prior to filing an EEO
complaint, her performance appraisals contained no negative comments.
She reiterates her allegation that a male employee was given higher
graded work so that he would qualify for a higher position. Finally,
she argues that management fabricated evidence against her in order to
justify reasons for her non-selections.<2>
ANALYSIS AND FINDINGS
Turning first to complainant's claims of disparate treatment and applying
the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), the Commission
finds that even assuming complainant established a prima facie case of
discrimination and/or retaliation in regard to the issues she raised,
she failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
In a non-selection case, pretext may be demonstrated in a number of ways,
including a showing that complainant's qualifications were observably
superior to those of the selectee. See Williams v. Department of
Education, EEOC Request No. 05970561 (August 6, 1998). Complainant did
not make such a showing in the case herein, nor did she offer other
evidence to establish that the selections at issue were motivated by
a discriminatory animus. For example, RO and SO testified that S1 was
selected based on her accounting experience and that complainant's file
did not include the same level of accounting experience. Although
complainant correctly asserted that she had 24 hours of accountant
course credit, she failed to establish that her accounting experience was
observably superior to that of S1. As the agency noted in its FAD, S1
had completed 24 credit hours and had an AA degree in accounting, as well
as experience working as an a accountant and an accounting technician.
Despite complainant's assertion that she was better qualified and had the
requisite accounting experience, the evidence does not establish that
complainant's qualifications were observably superior to those of S1.
Furthermore, the same is true for each of the other selections about
which complainant complains. Although complainant argues that she was
better qualified for each, a review of the applications does not support
the argument that complainant's qualifications were observably superior
to any of the selectees.
Nor did complainant offer any other evidence to establish her
non-selections were motivated by her race, color, sex, age, national
origin, or prior EEO activity. In arguing that she has been continually
subjected to discrimination in the selection process, complainant relies
heavily on the fact that the recommending/selecting officials involved
are White. However, as noted above, complainant failed to establish
that she was observably superior to any of the selectees or to raise any
other evidence to establish that the selections were discriminatory.
The fact that the management officials involved in the process were
not of the same race/color, or national origin as complainant does not
suffice to establish that their selection decisions were discriminatory.
Nor does the fact that subjective criteria were used in determining who
was better qualified for certain positions. After a careful review
of the evidence, we find that complainant failed to meet her burden of
establishing by a preponderance of the evidence that the selections at
issue were motivated by her sex, race/color, national origin, age or
prior EEO activity.
Furthermore, although complainant alleged that she did not receive any
negative comments on performance appraisals prior to her EEO activity,
a review of the record establishes that complainant had been counseled
about her performance by RO prior to her initial November 1999 contact
with the EEO counselor. Indeed, RO testified that complainant's midyear
appraisal in October 1999 included a discussion of complainant's need to
improve in certain areas. Similarly, RO noted that she told complainant
to begin keeping a log of interactions with vendors based on complainant's
claim that she was unable to complete certain work due to the time she
spent dealing with vendors. In arguing that these explanations were
pretextual, complainant offered nothing beyond her own belief and the
fact that the counseling contacts increased after her November 1999 EEO
contact. Given that the record establishes that RO discussed several
performance concerns with complainant prior to this EEO activity, this
evidence is not sufficient to establish that the agency's explanations
for its actions are, more likely than not, a pretext for discrimination
or retaliation. In regard to complainant's claim that a male co-worker
was given higher graded work assignments to ready him for promotion,
RO noted that she would have given complainant other work if she was
able to complete all of the tasks that were assigned to her. Again,
complainant failed to establish that this explanation was a pretext for
discrimination or retaliation.
Finally, in regard to complainant's claim that she was subjected
to a hostile work environment, we find that there is insufficient
evidence to establish that the actions discussed herein were based on
complainant's membership in a protected group. Moreover, we find that
the substance of complainant's allegations concern personnel actions
and complainant presents no evidence that any of the above actions
were objectively offensive, abusive or hostile, and otherwise taken in
order to harass her. In this respect, we note that a reasonable person
in complainant's position may find some of the personnel actions she
endured to be difficult or frustrating. However, the actions alleged are
common workplace occurrences, and unless it is reasonably established
that the actions were somehow abusive or offensive, and were taken
in order to harass complainant on the basis of any of her protected
classes, such events are not sufficiently severe or pervasive so as
to offend the general sensibility of an individual experiencing such
occurrences in the workplace. See Long v. Veterans Administration, EEOC
Appeal No. 01950169 (August 14, 1997). Although one management official
acknowledged that she suggested that complainant take an English course,
noting that she had received complaints from vendors that they could not
understand complainant, this comment is not sufficient, standing alone,
to create a hostile work environment on the bases of national origin.
Accordingly, after a thorough review of the record, including
complainant's statement on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we find that
complainant failed to prove by a preponderance of the evidence that
she was subjected to discrimination or retaliation. The agency's final
decision is therefore hereby AFFIRMED.
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
August 19, 2002
Date
1 In so finding, the agency noted that the
selectees for the positions discussed in Issues 1-3 were female and
that complainant therefore did not present a prima facie case of sex
discrimination in regard to those issues.
2Although complainant argues on appeal that she was been subjected to a
pattern of discrimination during her years at the agency, she does not
address the agency's dismissal of her allegations relating to the denial
of training and non-selections which occurred prior to that described
in Issue 1. As complainant therefore did not appeal this dismissal,
we will not address it in this decision.