0120110249
10-14-2011
Valarie D. Johnson, Complainant, v. Jacqueline A. Berrien, Chair, Equal Employment Opportunity Commission,1 Agency.
Valarie D. Johnson,
Complainant,
v.
Jacqueline A. Berrien,
Chair,
Equal Employment Opportunity Commission,1
Agency.
Appeal No. 0120110249
Agency No. 200900007
DECISION
On September 24, 2010, Complainant filed an appeal from the Agency’s
September 1, 2010, final decision concerning her equal employment
opportunity (EEO) complaint alleging 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 Commission accepts the appeal
pursuant to 29 C.F.R. § 1614.405(a).
The case is before us following a decision by the Agency in which it found
that Complainant had not established that she had been discriminated
against, as alleged. For the reasons which follow, the Commission
AFFIRMS the Agency’s decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant
had not established that she had been discriminated against based on
reprisal for prior protected EEO activity with respect to her claims that
her detail was being terminated, that she was given a lower performance
appraisal rating than she believed was appropriate, and that she was
subjected to unlawful harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Investigator, GS181012, at the Agency’s Seattle Field Office
(SFO) in Seattle, Washington. On March 18, 2009, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the basis
of reprisal for prior protected EEO activity arising under Title VII when:
1. on October 22, 2008, she was notified that her detail to the
Alternative Dispute Resolution (ADR) Unit was being terminated, effective
December 1, 2008;
2. on January 29, 2009, she was given a “Highly Effective” rating
on her Fiscal Year (FY) 2008 performance appraisal; and
3. she was subjected to a hostile working environment with respect to
(among other things): her work assignments and expectations; her mid-term
progress review for FY 2009; her interactions with supervisors; and
the termination of her detail.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right
to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing, but subsequently withdrew her
request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).
In its final decision, the Agency found that Complainant had applied for a
position as a Mediator in 2005, but was not selected. She filed an EEO
complaint at that time, which was resolved by a settlement agreement.
Under the terms of the settlement agreement, Complainant was to receive
priority consideration for the next available Mediator position.
In September 2007, Complainant alleged that the Agency had breached the
settlement agreement when an employee from another District Office was
granted a hardship transfer to the position of Mediator in the SFO.2 In
November 2007, the SFO Director offered Complainant a detail to the ADR
Unit, which she accepted.
Complainant’s detail began on February 4, 2008, and was scheduled to
last 120 days. On June 2, 2008, her detail was extended for an additional
120 days. On October 1, 2008, the detail was further extended for another
120-day period, until January 28, 2009. However, on October 22, 2008,
the SFO Director notified Complainant that she was being returned to her
position as Investigator due to complaints about her job performance,
effective December 1, 2008.
With respect to Complainant’s claim regarding her FY 2008 performance
appraisal, the Agency found that Complainant had received a progress
review on August 22, 2008, from the ADR Coordinator, her supervisor
while on detail as a Mediator. During this progress review (after
approximately six months in her detail to the Mediator position),
Complainant was informed about two complaints that had been received
regarding her performance, and those complaints were discussed with her.
On November 25, 2008, Complainant’s first-level supervisor in her
position of record as Investigator (S1) delivered her performance
appraisal for FY 2008, and gave her a “Fully Successful” rating.
S1 stated that he requested input from the ADR Coordinator when he
prepared Complainant’s rating. Pursuant to the settlement of the
union grievance Complainant filed about the delivery of her FY 2008
evaluation, the November 2008 performance evaluation rating was withdrawn.
Complainant received her new FY 2008 performance evaluation on January
29, 2009. Her new rating of record was “Highly Effective,” which
was a higher rating than the initially awarded “Fully Successful”;
however, it contained negative comments about her performance as Mediator.
Complainant also alleged that she had been subjected to a hostile
work environment when: her ADR cases were reassigned; she was told to
conduct mediations according to the Agency handbook; she received a
progress review which did not reflect her job performance; she received
antagonistic e-mails from the ADR Coordinator; she had unwelcome off-site
contact with the SFO Director; there was no timely progress review for
her FY 2009 performance; she experienced unfair expectations for work
output from S1; she did not have enough time to consider her options
regarding her proposed performance standards for FY 2009; and finally,
with respect to the termination of her detail and the Agency’s refusal
to permanently assign her to the Mediation Unit.
The Agency concluded that Complainant had not established a prima facie
case of reprisal discrimination with respect to the termination of
her detail. While Complainant had shown that she had engaged in prior
protected EEO activity, that the SFO Director was aware of her prior EEO
activity, and that she had experienced an adverse action by the Agency,
e.g., the termination of her detail, the Agency found that she had not
shown a nexus between her prior activity and the adverse action.
Assuming nonetheless that Complainant had established her prima facie
case of reprisal discrimination, the Agency put forth its legitimate,
nondiscriminatory reasons for its actions. The Agency found that
the SFO Director ended the detail pursuant to internal and external
complaints received about Complainant’s behavior with outside parties,
as well as her behavior with Agency employees and co-workers. The Agency
concluded that Complainant had not shown its reasons to be pretext for
discrimination
The Agency further found that Complainant had not established a prima
facie case of reprisal discrimination with respect to her FY 2008
performance evaluation. While Complainant had established that she had
engaged in prior EEO activity, that the ADR Coordinator was aware of that
prior EEO activity, and that she received a performance rating for FY 2008
which was lower than she thought was warranted, the Agency found that she
had not shown a nexus between her prior activity and the adverse action.
It concluded that Complainant had not shown that the ADR Coordinator had
included the negative comments about her performance in retaliation for
her prior EEO activity.
Finally, with respect to Complainant’s claim that she had been subjected
to harassment by the ADR Coordinator, S1, and the SFO Director, the
Agency found that Complainant had not shown that the behavior of the
SFO Director, the ADR Coordinator or S1 was so severe or pervasive such
that an intimidating, hostile, or offensive work environment existed.
The Agency’s final decision concluded that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.
Complainant thereafter filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant did not submit a statement or brief in support of her
appeal. The Agency did not file a statement or brief in opposition to
Complainant’s appeal.
STANDARD OF REVIEW
As this is an appeal from a decision 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). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
Disparate treatment
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). Complainant must initially 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. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the Agency’s explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal by showing that:
(1) she engaged in protected activity; (2) the Agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the Agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Dep’t of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000). We find that Complainant has
established a prima facie case of reprisal discrimination. Complainant
had engaged in previous EEO activity, both the SFO Director and the ADR
Coordinator were aware of the previous EEO activity, Complainant’s
detail was terminated and she received a lower performance rating
than she thought was warranted, and both actions were close in time to
Complainant’s previous EEO complaints.3
We find, however, that the Agency put forth legitimate, nondiscriminatory
reasons for its actions. See Burdine, 450 U.S. at 233. The SFO Director
testified that he terminated Complainant’s detail to the Mediator
position due to internal and external complaints which had been received
regarding Complainant’s performance in the position. He determined that
her actions were having a negative impact on the SFO Mediation Program,
as outside mediators were complaining about Complainant’s conduct in
mediation sessions. The Agency also explained that Complainant’s
FY 2008 performance evaluation reflected the feedback which had been
received regarding Complainant’s conduct as a Mediator.
Complainant has not shown that the Agency’s reasons were pretext for
discrimination. See Reeves, 530 U.S. at 143. Although Complainant
disputes the accuracy of the feedback received from outside parties
regarding her performance as a Mediator, and argued that she also had
received positive evaluations, we find that the SFO Director could
legitimately rely on the negative feedback he had received as a reason
for the termination of her detail. Likewise, the ADR Coordinator could
include those negative comments in Complainant’s FY 2008 performance
evaluation in order to present an accurate assessment of the totality
of Complainant’s performance. We find that Complainant has not shown
that either the SFO Director or the ADR Coordinator were motivated by
her prior EEO activity.
Harassment
To establish a claim of harassment a complainant must show that: (1)
he or she belongs to a statutorily protected class; (2) he or she was
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on the complainant’s statutorily protected class; (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897. 903-905 (11th Cir. 1982).
Further, the incidents must have been "sufficiently severe or pervasive
to alter the conditions of [complainant's] employment and create an
abusive working environment." Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 at 6 (Mar. 8, 1994).
We find that Complainant has not established a claim of harassment based
on reprisal. Complainant’s claim of harassment consisted of allegations
that her ADR cases were reassigned; she was told to conduct mediations
according to the Agency handbook; she received a progress review which
did not reflect her job performance; she received antagonistic e-mails
from the ADR Coordinator; she had unwelcome off-site contact with the SFO
Director; there was no timely progress review for her FY 2009 performance;
she experienced unfair expectations for work output from S1; she did
not have enough time to consider her options regarding her performance
standards for FY 2009; and her detail was terminated. We conclude that
Complainant has not shown any of the above to be related to her prior
EEO activity.
Nor has Complainant shown that these incidents even remotely rise to
the level of a hostile environment of such a severe or pervasive nature
as to alter the terms and conditions of her employment. But see Voss
v. Dep’t of Homeland Security, EEOC Appeal No. 0720100001 (August
25, 2011) (finding that complainant was subjected to discriminatory
harassment based on age and disability when supervisors assigned her
menial and physically demanding tasks, talked to and about her in an
inappropriate manner, and made disparaging remarks about her); Crawford
v. U.S. Postal Service, EEOC Appeal No 0720070020 (March 5, 2010) (finding
that complainant was subjected to sexual harassment and reprisal when
a coworker subjected him to obscenities and comments about his sexual
performance on a near daily basis, repeatedly asked him out and talked
about him to other employees, and complainant’s attempts to stop the
harassment resulted in his assignment being changed and in discipline
for him). Therefore, we find that Complainant has not established that
she was subjected to unlawful harassment.
CONCLUSION
Based on a thorough review of the record and in the absence of contentions
on appeal from the parties, we AFFIRM the Agency’s final decision and
its finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
October 14, 2011
Date
1 In the present matter, the Equal Employment Opportunity Commission
(EEOC) is both the respondent agency and the adjudicatory authority.
The Commission's adjudicatory function is housed in an office that
is separate and independent from those offices charged with in-house
processing and resolution of discrimination complaints. For the purposes
of this decision, the term “Commission” or “EEOC” is used when
referring to the adjudicatory authority and the term “Agency” is
used when referring to the respondent party to this action. The Chair
has recused herself from participation in this decision.
2 Complainant’s breach allegation was addressed in Johnson v. EEOC,
Appeal No. 0120090852 (August 19, 2009) (finding no breach of settlement).
3 Complainant’s previous complaints have been the subject of Johnson
v. EEOC, EEOC Appeal No. 0120090852 (August 19, 2009) (claim of settlement
breach relating to her 2006 EEO complaint), and Johnson v. EEOC, EEOC
Appeal No. 0120103673 (October 14, 2011) (finding that Complainant had not
shown discrimination based on race, age, and reprisal with respect to her
non-selection for a position, denial of a time-off award and harassment).
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