Wendolyn Young, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 28, 2005
01a40724 (E.E.O.C. Mar. 28, 2005)

01a40724

03-28-2005

Wendolyn Young, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


Wendolyn Young v. Department of Agriculture

01A40724

March 28, 2005

.

Wendolyn Young,

Complainant,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A40724

Agency No. 020246 Hearing No. 130-2003-8091X

DECISION

Complainant, a Public Affairs Specialist, GS-1035-11, in the agency's

Forest Service in Jackson, Mississippi, filed an EEO complaint in which

she claimed that the agency discriminated against her on the bases of her

race (Black), sex (female), and in reprisal for her previous EEO activity

under Title VII when she was not selected for the position of Public

Affairs Officer, GS-10-35-12/13 under Vacancy Announcement R8091701G.

Complainant also claimed that she was discriminated against in reprisal

for her previous EEO activity under Title VII when:

1. From November 2001 on a continuing basis, her supervisor scrutinized

her by asking her questions about compensatory hours that she had accrued.

2. From November 2001 on a continuing basis, her supervisor has

criticized her regarding award recommendations for her staff and the

lack of performance appraisals for her staff.

3. She was advised not to file a complaint by the Forest Supervisor and

the Southern Region Director of Public Affairs.

4. She felt humiliated during a conference call.

5. Her assignment as Acting Public Affairs Officer was terminated.

6. She was denied credit for work that she performed while she was

on leave.

7. She was assigned to work under the new Public Affairs Officer.

8. From August 7-21, 2002, her supervisor authorized and instructed

personnel to remove equipment and files from her work area without her

knowledge or permission.

9. On August 21, 2002, her supervisor accused her of misusing her

authority to gain compensatory time.

10. On August 21, 2001, her supervisor tried to prohibit her from using

official time to meet with her attorney regarding her EEO complaint.

11. On August 28, 2002, in a meeting with her second-line supervisor,

management instructed her in writing to rescind 26 hours of compensatory

time.

12. On August 29, 2002, a management official stated that they could

have suspended her for gaining compensatory time.

13. On August 30, 2002, her personnel file was missing from the Personnel

Office.

14. From January to February 2002, her work assignments were taken from

her and she was required to perform lower graded duties.

15. Management has failed to take actions to stop the harassment.

The record reveals with regard to the relevant nonselection that

complainant was one of three candidates who were referred for

consideration to the selecting official, but the eventual selectee was

the only candidate who was recommended for selection. The selectee for

the position was a White female.<1> Complainant had previously worked

in the position at issue in an acting capacity.

The EEO complaint was accepted for investigation. Subsequent to the

completion of the agency investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). A hearing was held and

on September 2, 2003, the AJ issued a decision wherein he found that

no discrimination occurred. The AJ found that complainant failed to

establish a prima facie case of sex discrimination with regard to her

nonselection in light of the fact that the selectee was female. The AJ

also found that complainant failed to establish a prima facie case of

reprisal with regard to her nonselection because the nonselection occurred

approximately five years after complainant's previous EEO activity.

With regard to complainant's claim of race discrimination concerning her

nonselection, the AJ found that complainant established a prima facie

case, and also that the agency set forth a legitimate, nondiscriminatory

reason for her nonselection. The AJ noted that the agency stated that

the selectee was chosen because she had more prior experience in the

position of Public Affairs Officer. The AJ found that complainant did

not demonstrate that the agency's articulated reason was a pretext

for race discrimination. As for complainant's claim of retaliatory

harassment, the AJ found that complainant failed to establish a prima

facie case of reprisal because she had not been subjected to any adverse

employment action. The agency issued a final order dated October 24,

2003, wherein it fully implemented the AJ's decision.

On appeal, complainant contends with regard to her nonselection that

the agency's stated reasons for her nonselection, the selectee's greater

experience in public affairs supervision and complainant's lack of natural

resource experience, are pretext intended to mask discriminatory intent.

Complainant argues that natural resource experience was not a job-related

criteria and was not listed for response in the evaluation criteria.

Complainant nonetheless maintains that she demonstrated knowledge of

local, regional and national natural resource issues confronting the

agency. Complainant states that she advised or provided leadership in

resolving these issues and garnered public involvement in these issues.

Complainant further states that she has supervisory experience and has

engaged in a full range of supervisory responsibilities. According to

complainant, the Forest Supervisor stated to another agency employee that

the agency was not ready to have two Blacks leading in Mississippi.

Complainant states that the Forest Supervisor has in the past

recommended five white males, one Black male, three White females,

and one Asian/Pacific Island female for selection to positions of

the GS-12 through GS-14 levels. Complainant further states that the

Forest Supervisor has not recommended and the Regional Forester has not

selected an African-American female for any position during the Forest

Supervisor's tenure. According to complainant, no African-American has

permanently filled the Public Affairs Officer position in Mississippi.

Complainant contends that in Fiscal Year 2000, the Forest Service's

Managers Diversity Profile revealed that Black women held only six of 672

Manager positions in the agency. With regard to her claim of reprisal

concerning her nonselection, complainant states that the Acting Deputy

and the Forest Supervisor discussed her prior EEO complaint in 2000

or 2001. Complainant states that she has repeatedly been used in an

acting capacity as a Public Affairs Staff Officer for expansive periods

of time, yet she has not been chosen for permanent leadership positions.

In response, the agency asserts that the selectee possessed significantly

more experience in public affairs than complainant, including a lengthy

stint as a Public Affairs Officer. The agency challenges complainant's

argument that her college degree was more relevant to the job duties.

The agency states that the selectee possessed a graduate degree

involving a focus on communications. Additionally, the agency asserts

that the selectee possessed greater depth and breadth of experience than

complainant as complainant had been based in Mississippi for her entire

career with the Forest Service. Further, the agency maintains that the

doctrine of remoteness bars a finding of any causal connection between

complainant's previous EEO activity and her nonselection. The agency

notes that complainant's previous EEO activity occurred approximately

five years before the relevant nonselection.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record

and that the AJ's decision properly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. With regard

to complainant's nonselection, complainant failed to establish a prima

facie case of sex discrimination. Both complainant and the selectee

are female. Therefore, they are members of the same protected group.

For purposes of analysis, we will assume, arguendo, that complainant

has established a prima facie case of race and reprisal discrimination.

Next, we shall consider whether the agency articulated a legitimate,

nondiscriminatory reason for its action. The Forest Supervisor testified

that complainant performed satisfactorily while serving in an acting

capacity as Public Affairs Officer. However, the Forest Supervisor

also testified that he had different expectations for someone serving

in an acting capacity as opposed to someone filling the position on a

permanent basis. The Forest Supervisor testified that the selectee

was chosen because she possessed experience working with both the

Forest Service and other agencies, had an excellent background in

natural resources, and had work experience in supervising employees.

The Forest Supervisor further testified that the selectee has worked

as a Public Affairs Officer for ten years, is technically competent,

and possesses good interpersonal skills. The Forest Supervisor noted

that complainant has a general lack of experience in dealing with natural

resource activities; lacks breadth of experience as all of her experience

has been acquired in the National Forest in Mississippi; and has a general

lack of experience in supervising employees. We find that the agency

has articulated legitimate, nondiscriminatory reasons for its decision

not to select complainant for the Public Affairs Officer position.

We further find that complainant has failed to establish that the

agency's stated reasons were pretext intended to mask discriminatory

motivation. The Commission finds that it was not unreasonable for the

Forest Supervisor to have different expectations for an individual in an

acting capacity as opposed to an individual serving in the position on

a permanent basis. Upon review of the record, we find that complainant

has not shown that her qualifications for the position at issue were

so superior to those of the selectee as to warrant a finding that the

agency's stated reasons are pretextual. Further, complainant has not

provided corroboration of her claim that the Forest Supervisor stated

that the agency was not ready to have two lacks leading in Mississippi.

We therefore find that complainant was not discriminated against on the

grounds of her race, sex or in reprisal for her previous EEO activity

when she was not selected for the Public Affairs Officer position.

As for complainant's claim of retaliatory harassment, we note that a

single incident or group of isolated incidents will not be regarded as

discriminatory harassment unless the conduct is severe. Walker v. Ford

Motor Co., 684 F.2d 1129, 1138-1139 (D.C. Cir. 1985). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

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 v. Forklift Systems, 510 U.S. 17 (1993). In order to set forth a

prima facie case of reprisal, complainant must show that (1) she engaged

in a protected activity; (2) the agency was aware of her 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 action. See Hochstadt v. Worcester Foundation for Experimental

Biology, 425 F. Supp. 318, 324 (D. Mass. 1976), aff'd. 545 F.2d 222

(1st Cir. 1976).

We shall assume arguendo that complainant has established a prima facie

case of reprisal. With regard to complainant being questioned about

compensatory hours that she accrued, the Forest Supervisor stated that

complainant was questioned because the agency handbook requires that

employees must use compensatory time off by the end of the leave year in

which it was earned. According to the Forest Supervisor, complainant

accrued compensatory time on the books exceeding two years; therefore,

he wanted to remind her of agency policy and obtain her compliance

with the policy. As for his criticism of complainant regarding the

lack of performance appraisals for her staff, the Forest Supervisor

stated that complainant was questioned as to why performance elements

were not established or ratings completed for the employees for whom

she has supervisory responsibility. The Forest Supervisor noted that

all Forest Service employees are required to have performance elements

established by supervisors prior to the new fiscal year. With respect to

complainant's award recommendations for her staff, the Forest Supervisor

stated that several award recommendations made by complainant and other

officials were returned for additional staff work and were approved

once additional information was provided. The Forest Supervisor denied

complainant's claim that she was advised not to file an EEO complaint.

As for complainant's claim that she felt humiliated during a conference

call when participants were told to refer all public affairs concerns to

the Deputy, the Forest Supervisor stated that he informed complainant

several days before the conference call that her detail as the Acting

Public Affairs Officer would end. As for the termination of complainant's

detail as the Acting Public Affairs Officer, the Forest Supervisor stated

that complainant served the complete term of the detail, July 29, 2001 -

November 18, 2001, as scheduled.

The Forest Supervisor stated that he had no knowledge of denying

complainant credit for work she had been asked to perform while on leave.

As for complainant's assignment to work under the new Public Affairs

Officer, the Forest Supervisor explained that complainant was asked

to return full-time to the Public Affairs Staff where the workload is

considerable as opposed to the reduced workload in complainant's other

work unit, the Land Management Planning Team. With respect to the removal

of equipment and files from complainant's work area without her knowledge

or permission, the Deputy Forest Supervisor stated that while complainant

was on a five month detail in Georgia, the acting Public Affairs Officer

asked if the printer could be moved from complainant's office to the

Public Affairs Officer's office. The Deputy Forest Supervisor stated

that he approved the request because it seemed reasonable for the acting

Public Affairs Officer to have direct access to a printer.

As for accusing complainant of misusing her authority to gain compensatory

time, the Forest Supervisor stated that complainant failed to follow

written instructions that require an employee to secure permission in

advance from her supervisor if she wishes to earn compensatory time.

According to the Forest Supervisor, he discussed this matter with

complainant as a means of reminding complainant about the use and earning

of compensatory time. With regard to prohibiting complainant from using

official time to meet with her attorney regarding her EEO complaint, the

Forest Supervisor explained that he told complainant that he was unaware

of all the intricacies associated with approving official time and that

he wanted to speak to the Human Resource Office. The Forest Supervisor

stated that he subsequently shared information with complainant concerning

the written policy regarding official time allowed for EEO complaints.

With regard to instructing complainant in writing to rescind 26 hours

of compensatory time, the Forest Supervisor stated that complainant was

not following Forest Service policy in the use/earning of compensatory

time. According to the Forest Supervisor, complainant earned 26 hours

of compensatory time, including 9.5 hours for her travel home, without

contacting him or the Deputy Forest Supervisor in advance for approval.

The Forest Supervisor stated that he considered those hours unauthorized

and that complainant had previously been instructed to accomplish her work

assignments within the 80 hour pay period until she eliminated her backlog

of compensatory time. As for a management official's alleged comment

that complainant could have been suspended for gaining compensatory time,

the Deputy Forest Supervisor stated that although he had no knowledge of

the statement being made by anyone, it was his understanding that the

Acting Public Affairs Officer mentioned to complainant that she could

have been suspended for failing to follow instructions concerning the

accrual of compensatory time.

With respect to complainant's file missing from the Personnel Office,

a Personnel Management Specialist stated that she has no knowledge of

complainant's file being missing. The Personnel Management Specialist

stated that complainant requested copies of her time sheets and all other

documentation in her time sheet file and such information was provided to

complainant. Both the Forest Supervisor and the Deputy Forest Supervisor

stated that they were unaware that work assignments were taken from

complainant and she was required to perform lower graded duties from

January to February 2002. They also stated that they did not believe

complainant had been harassed. We find with regard to the alleged

acts of harassment that the agency has either presented legitimate,

nondiscriminatory reasons or has denied the occurrence of such actions.

In her attempt to establish that the agency's reasons are pretext

intended to mask discriminatory intent, complainant claimed with regard

to being questioned about compensatory hours that she had accrued that

the Forest Supervisor harshly questioned her and accused her of abusing

compensatory hours. Complainant stated that her compensatory time had

been approved in previous pay periods and the Forest Supervisor on many

occasions signed her time and attendance cards and never questioned

her about her compensatory time. Complainant stated that the Forest

Supervisor harshly accused her of not conducting performance appraisals

for her staff. Complainant maintained that she informed the Forest

Supervisor that she had conducted annual appraisals and submitted them

to the Personnel Office. Complainant claimed that the Forest Supervisor

then accused her of not conducting mid-year performance appraisals.

Complainant stated that she told the Forest Supervisor that if this was

such an important issue, he should have brought it to her attention at the

six month point rather than after she filed her EEO complaint. As for her

award recommendations, complainant contended that the Forest Supervisor

would not accept them and told her to change the amounts of the awards to

reflect five percent of the employees' salary. Complainant claimed that

she is unaware that anybody else was required to make such adjustments

prior to this incident. Complainant maintained that the Forest Supervisor

and the Southern Region Director of Public Affairs both advised her not

to file an EEO complaint. According to complainant, she told the Forest

Supervisor that she would look into the selection process to make sure

it was fair. Complainant states that the Forest Supervisor told her

he would not do that if he was her. With respect to the conference

call and her detail being terminated, complainant argues that she felt

humiliated when during a conference call on November 26, 2001, prior to

telling her that her detail had ended and that another acting Public

Affair Officer would be assuming the position, the Forest Supervisor

told the staff and rangers that they were to address all public affairs

concerns to the Deputy Forest Supervisor until the new appointee reported.

Complainant argued that while she was on sick leave she handled critical

issues that were facing the agency, but that she received no award or

recognition for going above and beyond the call of duty. With regard

to being assigned to work under the new Public Affairs Officer,

complainant testified that she was reassigned from Planning to Public

Affairs because the Forest Supervisor saw the necessity of having another

person help the new acting Public Affairs Officer. Complainant stated

that she was denied any assistance during her tenure as acting Public

Affairs Officer. With regard to the removal of equipment and files

from her work area without her knowledge or permission, complainant

claimed that she was the only employee whose equipment has been taken

while on leave. As for being accused of misusing her authority to gain

compensatory time and being told to rescind 26 hours of compensatory time,

complainant maintained that she received approval for the time from her

detail supervisor and that it is customary that the detail supervisor

approve compensatory time rather than the employee's supervisor with

her home unit. Complainant acknowledged that her compensatory time was

not rescinded nor was she penalized. As for her supervisor attempting

to prohibit her from using official time to meet with her attorney,

complainant testified that this happened repeatedly, but she always was

able to meet with her attorney. With respect to being told that she could

have been suspended for gaining compensatory time, complainant stated

that she considered the acting Public Affairs Officer's comment to be

very threatening because she did not know what the agency was going to do.

Complainant testified that her time and attendance file was missing from

the Personnel Office. Complainant stated that the file was located on the

Personnel Officer's desk and everybody else's time and attendance file was

in the proper place. With regard to work assignments being taken from her

from January - February 2002, complainant testified that one assignment

was taken from her and given to a district employee who lacked a public

affairs background. Complainant further testified that although she is a

GS-11 employee, she was told on several occasions to run the front desk.

However, complainant acknowledged that other arrangements were made and

she did not perform this duty. Complainant claimed that agency management

failed to take action to stop the harassment inflicted upon her.

Upon review of all of the incidents set forth in complainant's claim of

retaliatory harassment, we find that complainant has not established by

a preponderance of the evidence that the agency's explanation for the

alleged actions was pretext intended to mask discriminatory intent.

The agency presented legitimate, nondiscriminatory reasons for its

actions. With regard to certain alleged actions, the agency denied

that such incidents occurred. Complainant did not prove that such

incidents occurred. Rather, complainant stated that the potential

actions were mentioned, but she acknowledged that such actions were not

effected against her. We find that the alleged actions that did occur

and those that were merely discussed are not sufficiently severe or

pervasive to constitute harassment. Based on the record as a whole,

we find that complainant was not subjected to harassment in reprisal

for her previous EEO activity.

After a review of the record in its entirety, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the agency's decision,

because a preponderance of the record evidence does not establish that

race, reprisal, or sex discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court

appoint an attorney to represent you and that the Court permit you

to file the action without payment of fees, costs, or other security.

See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��

791, 794(c). The grant or denial of the request is within the sole

discretion of the Court. Filing a request for an attorney does not

extend your time in which to

file a civil action. Both the request and the civil action must be

filed within the time limits as stated in the paragraph above ("Right

to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 28, 2005

__________________

Date

1The selectee declined the position and the agency allowed the job

certificate to expire.