Veda J. Lamar-Garth, Complainant,v.Alonzo L. Fulgham, Acting Administrator, Agency for International Development, Agency.

Equal Employment Opportunity CommissionDec 21, 2011
0120082820 (E.E.O.C. Dec. 21, 2011)

0120082820

12-21-2011

Veda J. Lamar-Garth, Complainant, v. Alonzo L. Fulgham, Acting Administrator, Agency for International Development, Agency.




Veda J. Lamar-Garth,

Complainant,

v.

Alonzo L. Fulgham,

Acting Administrator,

Agency for International Development,

Agency.

Appeal No. 0120082820

Agency No. EOP-05-16

DECISION

Complainant filed an appeal from the Agency’s May 7, 2008 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. For the

following reasons, the Commission AFFRIMS the Agency’s decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant

worked as a Supervisory Communications Specialist, grade level GS-15,

in the Agency’s Bureau for Economic Growth, Agriculture and Trade

(EGAT), Office of Program Analysis Communication and Outreach (PAICO),

Communications Knowledge Management Team (CKM) in Washington, D.C.

Complainant filed an EEO complaint dated September 12, 2005, alleging

that the Agency had discriminated against her when:

1. In August 2005, Complainant was subjected to unequal terms and

conditions of her employment on the basis of her race (African American)

when the Office Director of EGAT/PAICO, who was Complainant’s

supervisor, failed to adhere to the Agency’s Annual Evaluation Form

(AEF) Procedures.

2. From July 2005 to August 2005, Complainant was subjected to a hostile

work environment based on her race when her supervisor created an

untenable management environment by: usurping Complainant’s authority

with subordinates; speaking to Complainant in a condescending and hostile

manner; threatening Complainant with termination; participating in office

gossip and hearsay and creating an environment ripe with hostility;

and disparaging Complainant’s military service and background in the

presence of a subordinate.

3. On August 30, 2005, Complainant’s supervisor terminated

Complainant’s employment based on race and reprisal for prior EEO

activity.

At the conclusion of the investigation, the Agency provided Complainant

with a copy of the report of investigation (ROI) and notice of her

right to request a hearing before an EEOC Administrative Judge (AJ) in

a letter dated September 20, 2006. There is no evidence that a hearing

was requested. The Agency subsequently issued its May 7, 2008 decision

in which it concluded that the Agency had not discriminated against

Complainant.

In its decision, the Agency concluded that Complainant had not established

a prima facie case regarding the Agency’s failure to adhere to AEF

(evaluation) procedures. The Agency also noted that Complainant failed

to show that she had been subjected to an adverse action for which others

outside her race were treated differently. Regarding claim 2, the claim

of a hostile working environment, the Agency found that Complainant

failed to show that she was subjected to discriminatorily severe and

pervasive conduct by the Agency. Regarding claim 3, Complainant’s

termination, the Agency found that Complainant had established a prima

facie case based on race and reprisal but that Complainant failed to

show that the rationale offered by the Agency for its termination was

pretext to mask illegal discrimination. The Agency concluded that it

terminated Complainant because of her management style and her failure to

demonstrate the managerial and supervisory skills required for performance

in her position.

Complainant’s August 29, 2005 notice of termination discloses that

on September 19, 2004, she received an “initial career-conditional”

appointment as a Supervisory Communications Specialist. F3a at 1-2. In

the notice, Complainant was informed by the Chief, M/HR/POD that it was

her decision to terminate Complainant during her probationary period.

The Chief stated that the reason for Complainant’s termination during

probation was that she had failed to demonstrate the required skills

and abilities that would warrant her continued employment. The notice

specifically identified Complainant’s “autocratic” supervisory

style and the “micromanagement” of her subordinates and noted

that Complainant’s style inhibited the cohesiveness and damaged the

productivity of her work group. Id.

The Complainant began working for the Agency as a Supervisory

Communications Specialist on September 20, 2004. Ex. F7 at 38.

Complainant’s affidavit reflects that she had worked for the Agency from

January 2004, to September 18, 2004, while awaiting security clearance.

Ex. F31 Complainant stated that a previous supervisor (S1), a former

Director of EGAT/PAICO, had supervised her for 18 months prior to the

arrival of the supervisor under whose supervision she was terminated.

Ex. F4.

In her affidavit, Complainant noted that her supervisor violated Office

of Personnel Management (OPM) Regulation 2302 which, she indicated,

provided that any employee who has authority to take, direct others

to take, recommend, or approve any personnel action, shall not do so

through hearsay or discriminatory practices. Ex. F3. She stated that

her supervisor provided documents to Human Resources (HR) to validate

his basis for her termination stating that he had given her a formal

360 evaluation although he had not in fact done so. Id. Complainant

stated in her rebuttal that her supervisor first stated to HR that he

had provided a 360 evaluation but was now claiming that his evaluation

was not formal and that he was not required to follow the 360 process.

Ex. F4. Complainant stated further that the proper procedure for the

360 feedback process was for her supervisor to speak to her one-on-one

and collect a list of staff members, including lateral, subordinate and

superior staff, to establish a fair assessment of her work performance.

Ex. F3.

Complainant stated that two employees (E1, E2) selected by her

supervisor to provide 360 feedback, had previously been counseled by her

for insubordination and/or lack of productivity and their comments were

quoted in the termination letter. Id. She stated that E1’s contract

was renewed with the Agency and E2 had been promoted. Complainant noted

that E2 came to EGAT at a grade level GS-13 in October 2004, was promoted

to a GS-14, and given a temporary FS-1, the equivalent of a GS-15,

within six months of obtaining a GS-14. She also stated that since her

termination, E2 had received another promotion.

Complainant stated that her supervisor did not follow any of the

procedures set by HR to provide her with feedback for the duties,

responsibilities, and requirements of the position nor the evaluation of

her supervisory/managerial performance by July 19, 2005. Id. She further

stated that at no time did her supervisor meet with her one-on-one

to discuss her work objectives or supervisory/managerial performance.

She also stated that her supervisor met with the other two team leaders

but not with her to discuss projects and expectations. Complainant stated

that her supervisor also did not discuss the excellent evaluation that

she had received from a previous supervisor (S1) and that he did not

include it in the package that he sent to HR. She stated further that

her supervisor did not include a positive statement about her performance

in the package that he had sent to HR. Id.; F4. Complainant stated

that her supervisor never had a single conversation with her to assess

her performance and provided draft work objectives to her through the

office’s Administrative Assistant, although he met with the other two

team members. Ex. F3; Ex. F4.

Complainant stated that after her supervisor’s arrival, she had a

meeting with him around July 20, 2005, to discuss a personnel issue

and a “preliminary meeting” with him on July 23, 2005. Ex. F3.

She stated also that as part of his in-processing, her supervisor met with

all three team leaders and she provided him with a Memorandum outlining

the achievements of her team during her year and a half and that after

“scanning” it briefly, he asked her about a team staff member who

had resigned prior to his arrival. Ex. F3; Ex. F4.

Complainant also stated in her affidavit that she met with E1 and her

supervisor on July 25, 2005, at her request. Concerning the meeting

with E1, Complainant stated her supervisor was “extremely hostile.”

Id.; Ex. B1 at 16; Ex. F6 at 8. She also stated in her affidavit that

at one point during the meeting regarding the need for E1 to complete

a task list involving his areas of responsibility, her supervisor spoke

to her in a “gruff” manner saying that if he were E1, he would not

want to complete the list either. Ex. F3. Complainant stated that her

supervisor also told E1 in her presence that Complainant did not have

to sign his invoice for payment of his services. Id. She explained in

her complaint that she asked E2, who she stated worked two to three days

at home, why he did not want to use the Project Tracker to log in his

projects, why he did not want to provide copies of his expense invoice,

and why he had missed deadlines that she had assigned him for various

projects. Ex. B1 at 16-17; Ex. F6 at 8.

Also concerning the meeting with E1 and her supervisor, Complainant

stated that her supervisor also stated during the meeting that he did

not care what she had to say. Ex. F3. She stated further that after

the meeting, she wrote a letter to the Acting Assistant Administrator

to follow-up on their previous conversation and to inform him of the

hostile work environment that her supervisor was creating with her staff.

Ex. F6 at 8; Ex. F3.

Complainant stated that her last conversation with her supervisor was on

the date that she and E1 met with him. She also noted in her affidavit

that following a review of the office portfolio review, her supervisor

invited two other team leaders and select team members to a celebration at

a restaurant in the building and she was the only team leader not invited.

Ex. F3.

Regarding a team retreat, Complainant stated in her affidavit that the

purpose of the retreat was held for team planning and not to discuss

her management style. Ex. F3.

Complainant stated that in a discussion with the Training Resources Group

(TRG) Consultant (TRG Consultant) following the retreat, she learned

that senior management was eligible to be assigned an executive coach.

Ex. F4. She stated that she requested assignment of a coach and S1

approved her request. Complainant stated further that coaching was a

service that was provided to any senior staff member upon request.

Complainant stated in her affidavit that she requested documentation from

HR regarding her termination and she was sent copies of electronic mail

messages of E1, E2, S1, S2, and Employee A. Ex. F3 at 6. She further

stated that she later learned that she had received a positive statement

from an African-American Education Communications Specialist (ECS) with

whom her team had worked closely. Complainant stated that the ECS’s

statement was not included by her supervisor in his submission to HR.

She also stated in her rebuttal that her supervisor had not asked for

feedback from three other members of her staff. Ex. F4. She stated

that after she was terminated, an electronic mail was sent by her

supervisor assigning Employee B, a White male, to her position in an

acting capacity. Id.

Complainant stated that her supervisor’s hostility “escalated” when

he became aware that she would be a witness in an EEO matter. Ex. F3.

The record reveals that Complainant received an evaluation rating of

“excellent” for the period from September 20, 2004, to December 31,

2004, from S1. Ex. B1 at 10. The evaluation discloses that Complainant

did not receive a mid-cycle review of her work objectives. The evaluation

also discloses that the end-of cycle evaluation of “excellent” was

signed by S-1 on February 25, 2005, and by Complainant on March 1, 2005.

The evaluation described Complainant as a “consummate professional”

who brought excellent experience in public relations and communications

to the Agency; that she had been mastering a steep learning curve since

joining the Agency; that she had faced the challenging role of team leader

with a skeletal and inexperienced team; and that she was beginning to

build a strong, professional staff with the right set of skills to meet

AA/EGAT’s visions of communication and knowledge management for the

Bureau.2 The evaluation also noted that Complainant’s team found her

to be experienced and energetic and she was working daily with staff to

build a sense of purpose and to define individual and team work plans and

develop products. The evaluation also indicated that in the relatively

short time that Complainant had been with EGAT, she had improved

communication and brought a new level of professionalism to Bureau events.

The evaluation had only two objectives and Complainant was rated

excellent on each. The work objectives included providing supervision

and leadership to establish a cohesive and functional team and improving

communication between EGAT offices and team. The evaluation noted

that when Complainant began as the team leader, she was faced with a

skeletal staff and four vacancies. The evaluation also reveals that

while the newly created team did not yet have a vision, a mandate or

plan of action, Complainant had established herself as a team leader.

The evaluation also discloses that Complainant maintained the discipline

to hold weekly team meetings and to send forward a communication agenda

and to discuss progress by the team.

The record contains a January 18, 2005 electronic mail which reveals

that the EGAT/AA had approved the “nomination” of Complainant to

the Leadership/Executive Development Course for June 5 to June 17, 2005.

Ex. F7 at 27.

The record contains a September 1, 2005 letter from Employee C to

Complainant. Ex. F4 at 4. In the letter, Employee C, who noted that

he had worked with and for Complainant, that he was “troubled and

perplexed” when he learned that Complainant was terminated from her

employment as a CKM team leader. Employee C stated further that he

found working for Complainant to be an “extreme pleasure.” Id.

He also stated that Complainant established a marketplace for ideas

to flourish and that her own ideas did not have to take dominance.

Employee C also stated that Complainant went out of her way to

give recognition to her team members over herself. He noted that

this ability of Complainant was the mark of a very secure person and

that secure persons made exceptional leaders. Employee C described

Complainant as a compassionate person and one who conveyed enthusiasm

for ideas and serious discussion. Id. He also stated that Complainant

had some of the most important management skills that were in short

supply in the workplace, not only within the Agency. Employee C stated

that Complainant encouraged staff to come up with new ways of solving

problems and that he always felt that his thoughts and those of the

other team members would be welcomed by Complainant and would get an

honest hearing and fair evaluation. Employee C noted that Complainant

had a sense of humor and that it made all the difference in the world

of interpersonal dynamics and easing the pressures of work. He ended

his letter by saying he was disheartened about the unfortunate turn of

events and that he meant what he had written sincerely.

Contained in the record is the affidavit of a GS-14 Program Analyst (on

the team of and supervised by S2). Ex. F-10. She stated that on one

occasion she had had the opportunity to work together with Complainant

on the same activity of designing a financial database for the Bureau.

The Program Analyst stated that they attended meetings during the design

and information gathering phase of the project. She stated that she

heard subordinates complain that Complainant’s supervisor held closed

door meetings with Complainant’s subordinates and that she noticed

that many of the meetings did not include Complainant. The Program

Analyst also stated that on occasion, she overheard Complainant’s

subordinates making unprofessional remarks about her to the previous

Office Director. She stated that she overheard one of Complainant's

subordinates discussing time and attendance with the prior PAICO Office

Director and that shortly thereafter Complainant was fired. She stated

that she was “personally told” by the “Acting Director of EGAT”3

that Complainant’s subordinates did not like her. Id. The Program

Analyst also stated that she had attended a meeting when the “prior

Office Director”4 created a “hostile environment” for other Black

PAICO staff and it was her feeling that the practice was passed on and

continued by Complainant’s supervisor. Id.

In his affidavit, Complainant’s supervisor stated that when he

joined EGAT/PAICO as its Director on July 18, 2005, he held a general

staff meeting. Ex. F5. On July 19, 2005, he held a meeting with

the office’s three team leaders, including Complainant, and met

with Complainant and others on July 20, 2005, concerning a “staffing

issue” on Complainant’s team. He also stated that he met one-on-one

with Complainant on July 25, 2005, concerning team expectations, goals,

and on-going tasks and that he met with other team leaders to discuss the

same issues. He stated also that while he may have met more frequently

with other team leaders, the frequency was to address specific work issues

which the other teams were organizing for the office or the Bureau. Id.

Complainant’s supervisor stated in his affidavit that he had had

discussions with Complainant concerning performance expectations and

that he had documentation that indicated such discussions were held by

her previous supervisors. Id. He stated also that the assessment

of Complainant’s managerial/supervisory performance was not an AEF

procedure which required a 360 feedback process or that required a joint

selection of persons to be contacted and, therefore, the established

procedures referred to by Complainant were not applicable. He stated

further that he did pursue the 360 feedback process due to the “brief

time” that he had supervised Complainant and his desire to get a

more complete picture of Complainant’s performance as a manager and

supervisor. Complainant’s supervisor stated that he solicited feedback

on the Complainant's managerial and supervisory skills and capacity from

the employees whom Complainant supervised; other team leaders within

the office who had worked closely with the Complainant over the same

period; members of EGAT’s extended communications team with whom the

Complainant worked; and two other individuals who had also supervised

the Complainant during her probationary period (S1 and S2). Id.

Also in his affidavit, Complainant’s supervisor stated that “most”

of the people from whom feedback was solicited declined to provide any

comments or indicated that they were not in a position to comment on

Complainant's managerial or supervisory skills. He also stated that the

“substantive” responses received were contained in the documentation

provided to HR. Id. Complainant’s supervisor also stated that when

the feedback was received and verified with Complainant's previous

supervisors, he worked with the previous supervisors to verify that

Complainant had been provided feedback on her managerial/supervisory

skills and had been provided training to help remedy identified

deficiencies. He stated further that such feedback and training had been

provided. He stated that during his exchanges with prior supervisors, S1

indicated that she had also arranged for Complainant to have a managerial

mentor from a Bureau contractor to assist Complainant. Id.

Complainant’s supervisor also stated in his affidavit that the

conclusions presented in his Memorandum to HR concerning Complainant's

managerial/supervisory skills and his recommendation that she be

reassigned from her supervisory position as CKM Team Leader represented a

consensus view of the three persons who had supervised Complainant during

her probationary period. Id.; Ex. F7. He stated that after he discussed

the matter with his first and second level supervisors and asked them

whether they had observed managerial or supervisory skills demonstrated

by Complainant that would “mitigate against” his recommendation,

his supervisors stated that they had not seen any such evidence. Ex. F5.

Regarding Complainant’s allegation that he failed to provide her with

an evaluation of her supervisory/managerial performance on July 19,

2005, Complainant’s supervisor stated that among the papers that

he had found after arriving on the job was a Memorandum from HR which

indicated that Complainant’s supervisory managerial performance was

due on November 9, 2005, and that a Memorandum recommending retention or

reassignment of Complainant was due on December 9, 2005. Id. He stated

that the documentation did not direct him to provide this evaluation

to Complainant. Complainant’s supervisor also stated that on August

15, 2005, he received a revised version of the instructions indicating

the evaluation of Complainant’s supervisory/managerial performance was

due on July 19, 2005, and that the Memorandum recommending retention or

reassignment of Complainant was due August 19, 2005. Id. He stated

that the documentation did not direct him to provide the evaluation

to Complainant.

Complainant’s supervisor stated that he did not terminate Complainant

and only made a recommendation regarding Complainant's suitability

for continuing in a managerial/supervisory position. He stated

that the decision to terminate Complainant was made by HR. Id.

Complainant’s supervisor further stated that during the preparation

of his recommendation, he discussed with an HR Specialist (HRS-1) how

a reassignment would be identified and executed.

The record contains an unsigned and undated Memorandum from

Complainant’s supervisor to “M/HR/LERB.”5 F3a at 3-18. In it,

Complainant’s supervisor stated that due to the short time that

he supervised Complainant, he requested input from her two previous

supervisors, S1 and S2, and “general” 360 feedback concerning

Complainant’s overall performance. He further stated that based on

that information and his observation, the consensus view of those who had

supervised Complainant was that her supervisory and managerial approaches

did not contribute to the creation of a cohesive, well-functioning team.

In the Memorandum, Complainant’s supervisor pointed to comments made

by E1 and E2. Complainant’s supervisor also stated that issues and

questions regarding Complainant’s supervisory/managerial skills were

raised by S1, S2, and him. He referenced a retreat held to provide

feedback on supervisory issues, an “extended discussion” that S1

had with Complainant following the transfer of E2, and the arrangement

of S1 for a leadership counselor for Complainant to help Complainant

work on her interpersonal, management, supervisory and related skills.

Complainant’s supervisor stated that work with the leadership counselor

continued through June or July of 2005.6 Complainant’s supervisor

stated also that in another attempt to provide assistance, the EGAT

sent Complainant to the Federal Executive Institute’s (FEI) senior

leadership course. Complainant’s supervisor noted that Complainant’s

previous supervisors had made repeated efforts to advise her of observed

difficulties in her management and supervisory approaches and provided

assistance to her to facilitate change. He stated that based upon the

continuation of the same behavior, approaches, and similar problems, it

was evident that Complainant was not adapting and adopting the required

approach to teamwork and supervision necessary in the Agency. Id.

The record contains the affidavit of S2, Supervisory Program Analyst

for the Program Implementation team in EGAT/PAICO. Ex. F12. S2’s

immediate supervisor was also Complainant’s supervisor at the time of

the complaint. S2 stated that she had been the Acting Office Director

of EGAT/PAICO prior to her supervisor’s arrival. She stated that she

had supervised Complainant for a “limited amount” of time.” Id.

S2 further stated in her affidavit that she had submitted a statement for

use in the 360 evaluation process and that her statement was submitted

in a complete package submitted to HR.

In an unsigned statement, dated August 5, 2005, and which appears

to have been submitted for the 360 evaluation process, S2 stated

that she held her first meeting with Complainant on April 28, 2005,

when S2 was recently named Acting Director. Ex. F3a at 10; Ex. F7

at 16-18. S2 stated further that she discussed the work agenda for

Complainant’s office and general personnel issues with Complainant. Id.

She stated also that one personnel issue was whether or not the new

PAICO database designer was to be assigned to Complainant’s team.

S2 stated that three meetings were set up to go over work and progress

with Complainant but two were not held because Complainant arrived after

the meeting was scheduled or indicated that she had another appointment.

S2 further stated that when she did meet with Complainant she discussed

her annoyance with Complainant for not having met when she was scheduled

to do so. She stated that the meeting was a follow-up to a briefing

held the previous day and the two discussed little else other than S2

was not kept informed as to work involving CKM. Id.

In her 360 evaluation process statement, S2 stated that her next

interaction with CKM occurred while Complainant was in training and a CKM

staff member (Employee D) informed her that she was resigning. Ex. F3a

at 10-11. She stated that although Employee D at first told her that

she was resigning because she was able to find a new position at a higher

salary with a more diverse range of opportunities for graphic design, she

also shared with S2 that an audiovisual experience requirement was added

to a vacancy announcement for a position that was Employee D’s after

Complainant became dissatisfied that Employee A could not properly set

up audiovisual equipment for a presentation. Id. S2 stated that during

the second day of training when Complainant became aware of Employee

D’s resignation, she asked that E1 prepare an inventory of Employee

D’s supplies. S2 stated that the electronic mail that E1 received

from Complainant was forwarded to her by E1 and based on the tone of the

electronic mail, she advised Complainant to concentrate on her training.

Ex. F3a at 11. S2 stated that in a meeting with Complainant where the

request for the inventory was discussed, Complainant admitted that she

was very angry at being caught unaware of Employee D’s resignation

and that Employee D had denied that she was looking for a job. Id.

S2 also stated that she and Complainant spoke on other issues and she

advised Complainant that if she spoke to her team members in the manner

in which she had spoken to S2, she would be surprised if Complainant’s

team members could talk to Complainant “about anything that may not be

pleasant.” Id. S2 stated that Complainant “gave presentations and

not conversations” and that Complainant stated that she had received

very similar feedback at FEI. Id.

S2 also stated that after becoming the Acting Office Director, she was

frustrated by the lack of information sharing or the lack of contact to

discuss work issues. Id. She also stated that she was the recipient of

frustration voiced by Complainant’s staff and had some “extended”

communication with team members. She stated that when trying to share

feedback with Complainant, Complainant’s impression was that her team

did not like her and that her team’s reactions were limited to their

dislike of her. She also stated that she felt that Complainant did

not accept her comments even though she advised Complainant that given

S2’s temporary role, S2 had nothing to lose by laying it all out on

the table to Complainant. Id.

The record contains an undated Memorandum from HR to S2. Ex. B1 at 20.

The Memorandum was a “Supervisory/Managerial Probationary Period

Advisory” informing S2 that Complainant was serving a probationary

period for supervisors and managers and that as a supervisor, S2

would ultimately decide if Complainant was fully successful in her

performance. The Memorandum also informed S2 that she was to advise

Complainant of the duties, responsibilities, and requirements of the

position and the manner in which Complainant was to perform them.

The Memorandum further advised S2 that Complainant was to be informed

that she would be appraised of her performance by the sixth month but not

later than the seventh month of her employment. Id. S2 was also required

to observe Complainant’s performance to determine whether problems

were developing that would raise a question regarding the retention

of the employee in the supervisory or managerial position beyond the

probationary period. S2 was also informed to “[b]e certain” to have

periodic discussions with Complainant about how she was doing in relation

to what was expected and to provide her with assistance when needed.

The record also contains another undated Memorandum from HR to S2

regarding Complainant. Ex. B1 at 22. The Memorandum noted that as a

“final step” in the evaluation of Complainant’s performance as a

manager, S2 was to complete the certification contained in the Memorandum

and return it to HR by August 19, 2005. The certification which was

signed by Complainant’s supervisor on August 18, 2005, indicates that

Complainant was serving the prescribed probationary period and that based

on his observation of Complainant, he would recommend a retention in a

reassignment from the position. Complainant’s supervisor did not check

the box indicating that Complainant had “satisfactorily completed”

the prescribed probationary period but checked off the second option

indicating that Complainant was serving the prescribed probation period.

Complainant’s supervisor also did not check the box indicating that

he was recommending retention in the position but instead checked the

box recommending reassignment. ROI Ex. F3a at 6.

The record contains the affidavit of E1. Ex. F11. In his affidavit,

E1 stated that his title was that of Contractor and he was the webmaster

for the Bureau. He identified Complainant as his supervisor. E1 stated

that he had a meeting which “revolved around” his previous action

to leave his EGAT webmaster position and go to work for a different

office with the Bureau. He also stated that Complainant called the

meeting because Complainant had gone to his second level supervisor and

complained that she wanted to have a meeting with the three of them.

E1 stated that Complainant stated that he should leave the meeting but

Complainant’s supervisor stated that E1 should stay. He said that later

on, there was agreement that he should leave the meeting. He stated also

that the meeting became rather heated and that he recalled distinctly that

Complainant was the first to raise her voice in anger and her supervisor

asked her if that was the way she treated all her subordinates and if so,

he could understand their unhappiness with Complainant’s performance.

E1 also stated that he had brought his concerns to Complainant before

a meeting on July 21, 2005. He also stated that Complainant had a

difficult time managing a team on a collegial level. E1 stated that

every direction from Complainant was a direct order and there was very

little give and take. He stated also that she cancelled staff meetings

without notice and when he told her to give notice of a cancellation,

Complainant took umbrage and that is when they had their meeting about

Complainant’s management style.

An August 15, 2005 statement is contained in the record. F3a at 16, 18.

The statement does not indicate thereon its author and purports to

have been prepared by E2.7 The statement notes that Complainant had an

overall inability to communicate and an inability to develop appropriate

organizational goals and that these inabilities hampered the team’s

operations. Id. E2 also stated that Complainant had an inability to set

appropriate priorities which hurt the team’s effectiveness. E2 provided

two examples of Complainant’s lack of understanding of organizational

goals and two examples of Complainant’s inability to set priorities.

The statement indicates that E2 did not have a meeting with Complainant,

her then supervisor, about her role and responsibilities until December

13, 2004. E2 stated that her supervisor and she came to agreement

on other work objectives soon after the December 13, 2004 meeting but

that E2 was unable to complete the work objectives by the end of the

calendar year. Id. E2 stated that this factor reflected badly on

her 2004 annual evaluation which she stated was vaguely written and

did not incorporate the high performance rating she had received for

the first three quarters of the year in her old position. She stated

that at the time she did not understand the rating system sufficiently.

E2 indicated that she had started as a writer/editor on October 4, 2004.

E2 stated that the December 13, 2004 meeting resulted in a change in her

work, noting that she had been writing daily stories for the intranet

site and she had argued that she felt this was not the best use of her

time given other communications priorities.

E2 noted that several times she was asked about reports from others

that she as the writer/editor would have reviewed but that she had

to admit she knew nothing about. She stated that the logic of what

she was asked to review and what bypassed her was not clear to her and

this did not do much for how she was perceived within the Bureau. Id.

E2 also stated that the situation did improve when she pointed out that

she felt that Complainant disapproved of any communication that she had

with other communications employees outside of her Bureau.

The record also contains an August 16, 2005 electronic mail message reply

from Employee A (who the electronic mail indicates worked in EGAT/ESP)

to an August 15, 2005 electronic mail message from Complainant’s

supervisor concerning 360 feedback on Complainant.8 Ex. F7 at 24.

She stated that several months previous she had been asked by the TRG

Consultant to provide feedback on Complainant’s leadership style and

how it was working or not working with the CKM team. Employee A stated

that the role of the CKM’s team was unclear. She stated further that

Complainant had poor written communication skills (“poor grammar and

typos”), did not understand the Agency and EGAT, needed to implement

more formal structures, such as information sharing, exhibited poor

follow-up, and had not clearly articulated the role of the CKM team.

The record contains an August 16, 2005 electronic mail reply message

to Complainant’s supervisor from Employee E, concerning 360 feedback

for Complainant.9 Ex. F4 at 3. In the electronic reply, Employee

E stated that Complainant had the “unenviable task” of trying to

create a communication culture within EGAT where none had existed before.

She stated also that task was a work objective that she and Complainant

shared and she understood the constraints and difficulties the objective

entailed. Employee E further stated that “to her credit,” Complainant

had begun to identify and recruit an able and congenial team to help

her carry out her goals and objectives. Id. She also stated that

from her observation, Complainant provided Complainant’s team with

the support it needed to be effective and the oversight required to be

responsive to the Bureau and to the staff at large. Employee E stated

that Complainant was professional in her demeanor and in the way she

approached her duties and responsibilities, was willing to collaborate,

had never shied away from opportunities to lead those responsible for

communications and outreach, and sought ways to improve the Agency’s

capacity to be better and more effective communicators. Id.

In an August 15, 2005 electronic mail to S1, Complainant’s supervisor

requested that she send him information about Complainant’s capabilities

as a supervisor and manager of people. Ex. F7 at 15. He stated that he

needed the information right away because HR had “messed up” because

the dates HR had provided in their memo on Complainant’s supervisory

status were wrong. Id.

In a Wednesday, August 17, 2005 electronic mail to Complainant’s

supervisor, S1 stated that her files were “pretty thin” but that

in March 2005, CKM had held a retreat to develop an action plan for

the team and to provide team members an opportunity to provide candid

feed back on the management and supervision issues that team members

perceived on the part of Complainant. Id. at 14. S1 also noted that

the “front office” had agreed to move E2 from CKM to PAMS because

E2 was considering leaving CKM and EGAT because of Complainant’s

“management style and supervision” and “they” did not want to

lose E2. She stated that at the time E2 changed responsibilities, she

had a long conversation with Complainant; that the two talked about the

range of Complainant’s supervisory duties; and she recommended that

E2 be moved.

In an August 17, 2005 electronic mail, S1 stated that she had perceived

a problem with Complainant’s interpersonal and management skills

and she recommended that Complainant obtain leadership counseling from

TRG. Ex. F 7 at 14. She also stated that Complainant had several sessions

in April and May 2005, with TRG working on interpersonal, supervisory and

management skills. She further stated that after the CKM retreat, TRG

conducted an assessment of selected EGAT staff including all of CKM staff

on their issues with Complainant’s management and supervisory style

and used these in discussions with Complainant during April and May 2005.

A Memorandum, dated November 19, 2004, to Complainant from an HR

Specialist indicating that there was a five-day course for Agency

Washington supervisors entitled “Supervisor's Role in Personnel

Management (SRPM)." Ex. F7. The record also contains a December 2,

2004 electronic mail to the HR Specialist informing him that two weeks

prior Complainant had completed a five-day mandatory supervision course

offered by FEI. Ex. G13. The HR Specialist agreed in a reply electronic

mail that the seminar taken by Complainant would suffice for the SRPM

course. Id.

Complainant’s position description, GS-15 Supervisory Communications

Specialist (SCS), indicates that she was to perform the administrative

and human resource management functions for the staff; supervise, plan,

and schedule on-going workload assignments; set and adjust work to be

accomplished by subordinates; adjust programs and project priorities,

and prepare schedules for work completion. Ex. G2. Included among the

duties was assigning work to subordinate staff based on priorities with

consideration of the difficulty and requirements of assignments and the

capabilities of employees. The position description also indicates

that the SCS was to serve as senior manager for all technical public

information; formulate policies, programs and procedures governing

information dissemination; and supervise and plan all phases of public

communication, including media events, speeches and formal publications.

The SCS was also required to write and edit complex public information,

contribute to publications and report and select and organize materials

written by others for publication, report, or analysis.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that her complaint was never the Agency’s

failure to adhere to AEF procedures. She asserts instead that her

complaint was alleging that her supervisor’s claim that he had used the

360-evaluation system to determine Complainant’s management ability

was a lie. She asserts further that her supervisor never intended to

obtain a balanced evaluation of her performance and that he only began

to collect information about her once she had filed her discrimination

complaint. Complainant also denies that she was assigned a professional

development mentor, noting that it was she who had requested the career

coach after finding out that grade level GS-15 and above were eligible

for coaches. Complainant denied that the purpose of the retreat was to

discuss Complainant’s management style.

Complainant asserts that her supervisor failed to ask all staff

members whom she supervised about her performance, focusing only on the

statements of two of her subordinates who did not want her to manage them.

Complainant asserts further that the two statements of two other employees

who had worked with her and who had attested to the high quality of

her management, were not included in the package which her supervisor

submitted to HR.

Complainant asserts that if she were autocratic, there was no evidence to

substantiate management’s claim that she was counseled. Complainant

further asserts that E1 characterized her as autocratic because she

required him to report to her and to update her about his website work.

She also asserts that her supervisor supported E1 by telling him that

he did not need to account for his job performance to Complainant nor

justify his billing to Complainant. She asserts that E1 and E2 who she

had counseled for insubordination were the only two staff members used

in the HR case.

She asserts that no one could explain how she had worked in the position

for a year and 11 months without a single piece of documentation

referencing her alleged autocratic management style. She denied that

S2 had ever met with her to discuss her experience at FEI. Complainant

also asserts that she never made the comments S2 made in her affidavit.

Complainant asserts that her attendance at the FEI was not for correction

of her performance and that attendance at the FEI was reserved for the

best and the brightest.

In its response, the Agency asserts that regarding claim 1, Complainant

failed to establish a prima facie case that the Agency failed to adhere to

AEF procedures. The Agency asserts that Complainant failed to show that

she was subjected to an adverse employment action or that she was treated

differently from those not in her protected group. The Agency further

asserts that the AEF procedure did not apply to her as she was terminated

during her probationary period and prior to the end of the rating cycle.

The Agency further asserts that even if Complainant had established a

prima facie case of race discrimination, it had articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, the Agency

asserts that because S1 did not prepare an AEF for Complainant, he was not

required to employ the 360 feedback process because it was not an element

used in the preparation of an evaluation of the Supervisory/Managerial

Performance and Recommendation for Retention in or Reassignment from

the position that he submitted to HR.

Regarding her claim of a hostile work environment, the Agency asserts that

Complainant identified a single, isolated date in which she participated

in a discussion with management and a subordinate and that while,

Complainant may have been offended by her supervisor's reference to her

military background and his tone of voice, she failed to show that his

demeanor or comments were related to or based on her race.

Regarding Complainant’s termination, the Agency asserts that

considerable evidence was provided in support of her supervisor’s

assertion that he provided the recommendation based on the Complainant’s

failure to demonstrate the supervisory skills required to perform in her

position. The Agency also asserts that although Complainant references

positive and complimentary statements during the formal investigation and

on appeal to discredit the recommendation submitted, the statements do not

negate the facts that as a result of issues surrounding Complainant’s

management style, it was necessary to hold a retreat to address staff

concerns, that Complainant was placed in the FEI leadership course, and

that Complainant sought and received an executive coach to strengthen

her management skills.

The Agency also contends that although Complainant had received an

excellent rating, the rating covered only 114 days, and that shortly

after the evaluation, corrective measures began to be implemented to

address concerns with Complainant’s management style.

Regarding reprisal, the Agency states that Complainant’s supervisor

began obtaining feedback on Complainant because her supervisor sought to

respond to HR’s request to make a recommendation for Complainant’s

retention or reassignment.

ANALYSIS AND FINDINGS

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, religion or

prior EEO activity is unlawful, if it is sufficiently patterned or

pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699

(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39

(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift

Sys., Inc. at 3, 9 (March 8, 1994). In determining whether a working

environment is hostile, factors considered are the frequency of the

alleged discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and if it unreasonably interferes with

an employee's work performance. See Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court

has stated that: “Conduct that is not severe or pervasive enough to

create an objectively hostile work environment - an environment that a

reasonable person would find hostile or abusive - is beyond Title VII's

purview.” Harris, 510 U.S. at 22 (1993).

The conduct in question is evaluated from the standpoint of a reasonable

person, taking into account the particular context in which it occurred.

Unless the conduct is very severe, a single incident or group of isolated

incidents will not be regarded as discriminatory harassment. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982. Whether the

harassment is sufficiently severe to trigger a violation must be

determined by looking at all the circumstances, including 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.

Harris, supra. The Supreme Court has emphasized the necessity of

separating “significant from trivial harms.” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

The Commission's Enforcement Guidance: Vicarious Employer Liability for

Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,

1999) identifies two types of harassment: (1) harassment that results in

a tangible employment action; and (2) harassment that creates a hostile

work environment.

A complainant can establish a prima facie case of reprisal by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403

(Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically,

in reprisal, and in accordance with the burdens set forth in McDonnell

Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request

No. 05960473 (Nov. 20, 1997), a complainant may establish a prima

facie case of reprisal by showing that: (1) complainant engaged in

protected activity; (2) the Agency was aware of the protected activity;

(3) subsequently, complainant 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). A nexus may be shown by evidence that

the adverse treatment followed the protected activity within such a

period of time and in such manner that a retaliatory motive may be

inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231

(Jan. 25, 2005). See Clark County Sch. Dist. v. Breeden, 532 U.S. 268

(2001) (finding that a three-month period was not proximate enough to

establish a causal nexus).

The Commission has stated that adverse actions need not qualify as

“ultimate employment actions” or materially affect the terms and

conditions of employment to constitute retaliation. EEOC Compliance

Manual. Section 8: Retaliation, No. 915.003, at 8-13 (May 20, 1998); see

Burlington, 548 U.S. at 67. (finding that the anti-retaliation provision

protects individuals from a retaliatory action that a reasonable person

would have found “materially adverse,” which in the retaliation

context means that the action might have deterred a reasonable person

from opposing discrimination or participating in the EEO process). The

statutory retaliation clauses prohibit any adverse treatment that is

based upon a retaliatory motive and is reasonably likely to deter the

charging party or others from engaging in protected activity. Lindsey

v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999).

The Commission has held that the actions of a supervisor may constitute

per se reprisal where the supervisor intimidates an employee and

interferes with the employee's EEO activity in any manner. See Binseel

v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki

v. Dep’t of the Army, EEOC Request No. 05920778 (June 4, 1993).

To prevail in a disparate treatment claim, 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 Complainant

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, 120 S.Ct. 2097 (2000); St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 519 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the agency's

actions were motivated by discrimination. See U.S. Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t

of Transportation, EEOC Request No. 05900159 (June 28, 1990).

Because 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).

As an initial matter, we find that claim 1 standing alone does not state a

claim. 29 C.F.R. §1614.107(a)(1). There is no harm for which a remedy can

be granted. Even were we to reframe the claim as Complainant asserts,

i.e., her supervisor’s claim that he had used the 360 evaluation

system to determine Complainant’s management ability was a lie, the

allegation does not state a claim. The claim as urged by Complainant

is in support of an underlying claim and is not an independent cause

of action. Claim 1 and whether Complainant’s supervisor lied will

nonetheless be considered as background information to the remainder of

the complaint and as part of the harassment claim.

Complainant has alleged that her termination was based on race and

reprisal. Complainant established a prima facie case of reprisal

because she engaged in an EEO activity; her supervisor was aware that

she had engaged in such activity; and the termination was approximately

within one month of Complainant’s initiation of EEO contact. The EEO

Counselor’s Report (CR) shows that Complainant initiated EEO activity

on July 28, 2005, when she sought counseling with an EEO Counselor. ROI,

Ex. B1. We do not find that Complainant has established a prima facie

case based on race. She has not shown that others not in her protected

class were treated more favorably than she was regarding termination.

Even if we were to find Complainant established a prima facie case

of race (and retaliation) for the termination claim, we find that the

Agency articulated a legitimate, nondiscriminatory reason for its action

in terminating Complainant, i.e., Complainant failed to demonstrate

the required skills and abilities that would warrant her continued

employment. Specifically, the Agency reasoned that Complainant’s

“autocratic supervisory style” and “micromanagement” of her

subordinates had inhibited the cohesiveness and damaged the productivity

of Complainant’s work group. Complainant has not demonstrated that

the Agency’s reasons were pretext to mask prohibited discrimination.

In fact, the record indicates that Complainant’s supervisor recommended

that she be reassigned. He did not recommend termination. Even if

the Agency lied about its actions, Complainant must link the lie or its

creation to prohibited discrimination and she has not done so. Further,

Complainant has not shown that the Agency’s action in terminating her

was based on discriminatory animus.

Regarding the claim of a hostile work environment, we also find that

Complainant has not established that the alleged actions were severe or

pervasive enough to create a hostile workplace. Even were we to assume

the workplace was hostile towards Complainant, Complainant must show that

the hostile environment was linked to unlawful discrimination. At all

times, the ultimate burden of persuasion remains with a complainant

to demonstrate by a preponderance of the evidence that the agency’s

reasons were pretextual or motivated by intentional discrimination.

Complainant failed to carry this burden.

CONCLUSION

The Agency’s decision is AFFIRMED.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 21, 2011

__________________

Date

1 The functional title for the position was Communications

Director. Ex. G6 at 1.

2 “AA” appears to refer to the Office of the Assistant Administrator.

3 It is not clear to whom the Program Analyst was referring.

4 It is not clear to whom the Program Analyst was referring.

5 M/HR/LERB is defined as Management/Office of HR/Labor Employee

Relations. Ex. G16 at 3.

6 Though the undated Memorandum references June or July of the

“current” year, it can be inferred from the record that the reference

was to 2005.

7 In her affidavit, E2 stated that she could not locate her copy of her

360 feedback statement, but that she had no reason to believe that what

she had submitted was altered. Ex. F 8.

8 The record does not identify the position held by Employee A although

the Agency’s decision indicates in a footnote that Employee A was a

member of the “extended communications team.”

9 Employee E was identified as an Educational Communications Specialist

who, Complainant stated, had worked closely with her team. Ex. F 4.

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2

01-2008-2820

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

20

0120082820