0120103673
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. 0120103673
Agency No. 200900072
DECISION
On September 7, 2010, Complainant filed an appeal from the Agency’s
August 9, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 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 her
race, age, and in reprisal for prior protected EEO activity with respect
to her claims that she was not selected for a position for which she
had applied, she was not given a time-off award, and she was subjected
to unlawful harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Investigator at the Agency’s Seattle Field Office (SFO) in Seattle,
Washington. On November 6, 2009, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of race
(African-American), age (47), and in reprisal for prior protected EEO
activity arising under Title VII when:
1. on August 24, 2009, she was notified that she was not selected for the
position of Supervisory Investigator (Charge Receipt Technical Information
Unit (CRTIU) Supervisor), GS-1810-12, located in the Seattle Field Office;
2. in September 2009, she was denied a time-off award for her Fiscal
Year 2009 Performance Evaluation; and
3. she was subjected to harassment and a hostile work environment when,
for example, (a) the SFO Director engaged in, and continues to engage in,
a campaign to discredit her to her co-workers and other professionals;
and (b) the SFO Director has monitored, and continues to monitor, her
interactions with her co-workers.
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).
When Complainant did not request either a hearing or a final agency
decision before the expiration of the regulatory timeframe, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
In its final decision, the Agency found that a vacancy announcement
for the CRTIU Supervisor position was first announced in May 2009
(vacancy announcement SFDO-09-002), and that Complainant submitted her
application for the position. In June 2009, the Agency canceled the
vacancy announcement after it was closed but before a Certificate of
Eligibles had been created, and no interviews were conducted or selections
made from the May 2009 announcement. The May 2009 announcement’s
area of consideration had been limited to the SFO. Upon the advice
of the Agency’s Office of Human Resources, the position was to be
readvertised on USAJOBS, and the area of consideration expanded to the
entire San Francisco District, wherein the SFO is located. Consequently,
vacancy announcement SFDO-2009-005 was issued, and Complainant applied
on or about July 7, 2009.
Complainant was one of two candidates interviewed for the CRTIU
Supervisor position on August 17, 2009, by a two-member interview panel.
The interview panel members were the SFO Deputy Director and a SFO
Enforcement Supervisor. The SFO Director was the selecting official.
Based on the qualifications of the applicants, the recommendation of
the interview panel members, and his knowledge of the applicants’
interpersonal skills, the SFO Director chose the other candidate (the
selectee, Asian, under 40). The selectee had been the acting CRTIU
Supervisor for the previous six months.
With respect to the facts regarding the time-off awards received for
Fiscal Year (FY) 2009, the Agency found that between FY 2004 and FY
2008, Complainant had received a timeoff award each year. She did
not receive a time-off award for FY 2009, despite being rated as Highly
Effective (exceeds expectations). Her immediate, first-level supervisor
(S1) was responsible for not recommending a time-off award for her FY
2009 performance. S1 attested that Complainant’s accomplishments
for FY 2009 did not meet the recently revised award program criteria.
S1 attested that, as of FY 2009, the SFO award program criteria had been
revised so that awards would only to go to employees who demonstrated
extraordinary accomplishments, as opposed to previous years, when awards
were distributed more broadly. S1 attested that while Complainant’s
work level had not declined compared to earlier years when she had
received a time-off award, her performance was not extraordinary in
terms of her contribution to the achievement of the SFO goals.
The Agency found that, with respect to Complainant’s claim of
harassment by the SFO Director and by her co-workers, she had alleged
that she was treated with hostility by her co-workers. That hostility
included co-workers not acknowledging her, and leaving the room or
walking away when she is present. She felt that the SFO Director was
“monitoring” her through the other employees, and she claimed that
she had experienced a “hostile” interaction with the SFO Director.
Complainant was not more specific in her descriptions of the hostile
environment she claimed. S1 attested that the only potential hostile
interaction with the SFO Director which Complainant had raised with him
pertained to an offsite meeting between Complainant and the Director
in which all the Director could recall happening was that he had said
“good morning” to Complainant. As to the interactions with her
co-workers, S1 attested that he was aware of “strained” relationships
among the Investigators on staff over the procedures being utilized for
signing up for intake duty. S1 noted that, although a new system had
been put in place to provide for a more structured and orderly process,
Complainant and one other Investigator were refusing to participate in
the new process, which was causing conflict.
The Agency concluded that Complainant had not established a prima facie
case of race or age discrimination. It found that, while she had shown
that she was a member of the protected groups, was qualified, applied,
and was rejected for the CRTIU position, she had not demonstrated any
circumstances which raised an inference of discrimination. Similarly,
with respect to her prima facie case of reprisal discrimination,
Complainant had shown that she had engaged in protected EEO activity,
that the interview panel members and the selecting official were aware
of her protected EEO activity, and that she had been subjected to an
adverse employment action. However, the Agency found that Complainant
had not demonstrated a nexus between her protected activity and the
adverse action, other than the timing of the events.2
Notwithstanding the Agency’s conclusions that Complainant had not
shown her prima facie cases, the Agency put forth its legitimate,
nondiscriminatory reasons for its actions. With respect to
Complainant’s non-selection claim, the Agency found that the selecting
official had chosen the selectee for the CRTIU Supervisor position
because she was the better candidate for the job. The interview panel
members concluded that the selectee had provided better answers to
the interview questions, and more concrete recommendations to improve
Intake functions. The Agency found that the selecting official had
legitimately taken into account the selectee’s outstanding performance
ratings and her successful detail to the CRTIU position, as compared
to Complainant’s performance ratings and her 10-month detail as a
Mediator. The Agency concluded that Complainant had not shown these
reasons to be pretext for discrimination, despite her assertions that
she was the more qualified candidate for the position, and her longer
years of experience at the Agency. Complainant had also asserted that
the selectee had been pre-selected for the position, as based on the
selectee’s 6-month detail to the position before it was announced.
The Agency concluded that Complainant had not shown, however, that the
selectee had been pre-selected (if true) on a prohibited basis.
With respect to Complainant’s claim that she had been discriminatorily
denied a time-off award for FY 2009, the Agency put forth the sworn
statement of S1 that the awards criteria had changed in FY 2009, and
that Complainant’s performance did not meet the new, higher level of
extraordinary performance that was to be rewarded. S1 stated that two
White male Investigators, also over 40 and with no prior EEO activity,
who he also supervised were not given time-off awards in FY 2009 based
on their performance, even though each had received awards in previous
years. The Agency concluded that Complainant had not shown these reasons
to be pretext for discrimination.
Finally, with respect to Complainant’s claim that she had been subjected
to harassment by her co-workers and the SFO Director, the Agency found
that Complainant had not shown that the behavior of either the SFO
Director, or that of her co-workers, was so severe or pervasive such
that an intimidating, hostile, or offensive work environment existed.
The Agency found that Complainant had not provided sufficient detail
as to how the SFO Director was attempting to monitor or discredit her,
nor had she demonstrated how any potentially hostile behavior had
been based on her protected classes. 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 Dep’t 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).
The Commission has long held that the rules laid down by the U.S. Supreme
Court in McDonnell Douglas Corp. in proving a Title VII claim are also
applicable in proving an age discrimination claim under 29 U.S.C. §
633a(a). See Carver v. Dep’t of Justice, EEOC Appeal No. 07A50025
(Aug. 8, 2005); Brown v. Dep’t of the Navy, EEOC Request No. 05970009
(Apr. 20, 1998).
We find that, contrary to the conclusions of the Agency, Complainant has
established a prima facie case of race and age discrimination with respect
to her non-selection for the CRTIU Supervisor position. Complainant is a
member of the protected classes (African-American, over 40), she applied
for the CRTIU Supervisor position, was qualified, and was rejected.
The selectee was of a different race (Asian) and was under 40 at the time
of her selection. However, we find that Complainant has not established
a prima facie case of race or age discrimination with respect to being
denied a time-off award, in that she did not establish that individuals
not of her protected classes with performance similar to her performance
did get awards. Additionally, White Investigators over 40 also supervised
by Complainant’s supervisor did not receive time-off awards, and other
employees supervised by S1 who were over 40 did receive time-off awards.
We next turn to Complainant’s claim of reprisal discrimination.
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 previous EEO activity, the selecting official was aware
of the previous activity in that he was the named responsible management
official, Complainant was not selected for the position in question,
and the non-selection was close in time to Complainant’s previous EEO
complaints.3 We find as well that she has established a prima facie case
of reprisal discrimination with respect to the time-off award, as she
was denied the time-off award close in time to her previous complaints.
The burden of production now returns to the Agency to proffer legitimate,
nondiscriminatory reasons for its actions. Burdine, 450 U.S. at 253.
The selecting official and the interview panel members testified that
they chose the selectee based on her interview answers, her performance
ratings, and her interpersonal skills. The selectee was determined to
be the superior candidate for the position both by the interview panel
members and by the selecting official. Regarding the denial of time-off
award claim, Complainant’s supervisor testified as to the changed
criteria for awards in FY 2009, and that Complainant’s performance
had not met the new standards. This explanation is sufficient to meet
the Agency’s burden.
Complainant must now establish that the Agency’s proffered explanation
is not its true reason, but rather is pretext for discrimination.
Reeves, 530 U.S. at 143. Although Complainant contends that she was more
qualified than the selectee, we find that she has not demonstrated that
she was so “plainly superior” as to establish pretext or otherwise
support an inference of discrimination. See Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). We also find that Complainant has not
rebutted the Agency’s reasons for denying her the time-off award,
and has not argued that her performance was “extraordinary,” or that
other employees with her level of performance rating were given time-off
awards. We therefore conclude that Complainant has not established that
the Agency’s proffered explanation is pretext for discrimination.
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, 903-05 (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 her race, age, or prior EEO activity. Complainant has not
provided examples of harassing behavior on the part of her co-workers;
only that some do not speak to her, or leave the room when she enters it.
The sole example of harassing behavior cited by Complainant in the record
with respect to the SFO Director is that Complainant had an unpleasant
interaction with him outside of the office. She did not provide details
of the interaction. S1 provided a copy of an e-mail sent to him in
April 2009 in which she made this claim.
In an e-mail dated April 6, 2009 sent to S1 by Complainant, she stated,
“I had an unwelcome off worksite contact with [the SFO Director] on
Friday, I’m requesting no off-worksite contact. In the office, [the
SFO Director] never has contact with me unless someone else is near to
witness his treatment/comments towards me.” In an e-mail response from
S1 to Complainant on April 9, 2009, S1 responded, “[the SFO Director]
indicated that he had one interaction with you outside the office on
Friday. He stated that on his way into work he greeted you with a standard
‘good morning’ greeting.” Complainant has failed at any stage in
the processing of this complaint to provide a more complete description
of the incident in question, or to argue that this incident was something
other than a simple greeting by the Office Director to an employee.
Upon investigation, the only interaction was determined to be that the
SFO Director said “good morning” to Complainant outside of the office.
We conclude that Complainant has not shown any of the above to be related
to her race, age or prior EEO activity. Nor has she 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. Therefore, we find that Complainant has not shown
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 (Nov. 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 See n. 3, infra.
3 Complainant’s previous complaints have been the subject of Johnson
v. EEOC, EEOC Appeal No. 0120090852 (August 19, 2009) (finding no
breach of settlement relating to her 2006 EEO complaint), and Johnson
v. EEOC, EEOC Appeal No. 0120110249 (October 14, 2011) (finding that
Complainant had not shown discrimination based on reprisal with respect
to Complainant’s FY 2008 performance appraisal, the termination of
her detail to the position of Mediator, and the existence of a hostile
work environment).
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