0120065034
03-25-2008
Yvonne M. DeMarino, Complainant, v. Charles F. Conner, Acting Secretary, Department of Agriculture, Agency.
Yvonne M. DeMarino,
Complainant,
v.
Charles F. Conner,
Acting Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120065034
Hearing No. 150-A5-0459X
Agency No. APHIS200400077
DECISION
On September 5, 2006, complainant filed an appeal from the agency's July
23, 2006, final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Plant Protection Quarantine Officer with the subtitle
of Assistant Program Director, GS-13 at the agency's Plantation, Florida
office. On August 26, 2004, complainant filed an EEO complaint alleging
that she was discriminated against and harassed on the basis of sex
(female) when:
1. On or about April 23, 2004, the Deputy Director, Quality Assurance (DD)
failed to provide a copy of the Sentinel Meeting Minutes to complainant;
2. On or about April 28, 2004, the State Plant Health Director,
complainant's second-level supervisor (D1), failed to include complainant
in Incident Command (ICS) training that was given to all GS-13 managers
and lower grade employees;
3. On or about April 29, 2004, D1 transmitted an e-mail message to
complainant, which was meant for her supervisor (S1), thereby creating
a hostile work environment;
4. On or about May 5, 2004, D1 slandered complainant's name to a
colleague;
5. On a date unknown, D1 failed to include complainant as a member of
the Florida Management Team when there were other GS-13s placed on that
management team;
6. On or about May 16, 2004, D1 changed complainant's position from
Assistant Program Director of the Citrus Canker Eradication. Program
(CCEP) to Mid-Level Manager1;
7. On or about May 17, 2004, complainant was not selected for an interview
for the position of Senior Regional Program Manager, a GS-14 level;
8. In or about September 2004, D1 deliberately left complainant out of
the loop regarding the status of temporary employees who volunteered to
work in Florida after the hurricane.
9. In September 2004, management deliberately left complainant out of
e-mail notifications, meetings, closed door discussions, and conference
calls as Regulatory Director.
10. D1 used inappropriate and sexually explicit language from 1996 until
complainant was promoted (March 7, 2005).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on May 10 and 11, 2006
and issued a bench decision on June 23, 2006.
The AJ first addressed the claim concerning the alleged failure to
provide complainant with copies of the Sentinel Meeting Minutes. The AJ
noted that she saw no evidence in the record to indicate that that was
done intentionally. She noted that she listened to the testimony of DD
and stated that she had no reason to believe or doubt his credibility
with respect to his testimony regarding that topic. The AJ noted that
DD's assertion that he did this inadvertently was substantiated by
the testimony of two other managers. The AJ found that ultimately,
the evidence showed that the meeting minutes were, in fact, provided
to complainant, although not until sometime after the actual meeting
occurred. The AJ found that the evidence of record failed to support any
inference that there was any discrimination behind this agency action.
The AJ then addressed the allegation that on April 28, 2004 D1 failed
to include complainant in a training given to all GS-13 managers and
lower grade employees. The AJ found that the e-mail announcement
regarding this training indicates that this training was ultimately
going to be given to everybody. The AJ found that complainant did not
put forth any evidence to refute the veracity of this e-mail; therefore,
the AJ found the e-mail to be authentic. The AJ noted that within that
e-mail it indicated that, at the time it was issued, there were limits
on the number of people who could attend the initial in-person training.
The AJ further found that it was not disputed that complainant at the time
this announcement came out had already had ICS training of some form.
The AJ further found that it was also undisputed that complainant
was subsequently offered the opportunity to go to this particular ICS
training and turned it down. The AJ found that, in fact, there is an
e-mail in the record which reflects that she denied the offer and was
somewhat relieved at not having the obligation to attend the training in
the first place. Thus, the AJ concluded that she found it difficult to
see how this action could be at all adverse. Therefore, with respect to
this particular claim, the AJ found no evidence of discriminatory motive
behind the decisions made by the named responsible management officials.
With respect to the April 29, 2004 e-mail that was inadvertently
transmitted to complainant, this apparently was an e-mail that was
supposed to go to her supervisor (S1), and it addressed an e-mail
that complainant had sent to another manager. The AJ found that in
D1's e-mail he labeled complainant's email "acid" or "an outburst",
or both of those things. The AJ found that in the e-mail, D1 also
indicated to S1 that he needed to discuss with complainant the tone of
the e-mail as he perceived it as being not healthy for the organization.
The AJ noted that during his testimony, D1 willingly admitted that he
did this. The AJ then noted that there is nothing contained within
federal antidiscrimination law which states that it is inappropriate
for a supervisor to tell a subordinate supervisor to correct behavior
that is deemed to be inappropriate with a subordinate. The AJ found no
discrimination as to this claim.
Next, the AJ found the following concerning the alleged slander on May
5, 2004: the basis of this slander according to the evidence was D1's
reference to complainant's e-mail as "acid" and the fact that D1 asked
the former Regulatory Director in this particular unit, about this "acid"
e-mail. Assuming that all that is true and he had this conversation
with this individual, there is no connection to complainant's sex.
The AJ then addressed the next claim, that on May 16, 2000, D1 was
responsible for changing complainant's position from Assistant Program
Director to Mid-level Management, as follows: The testimony indicated
that the mandate for the change in these position descriptions came
from OPM. It did not come from the USDA or any of its affiliates.
There was undisputed testimony that the canker program was no longer an
eradication program; that it has undergone changes in the last couple
of years since 2004 and that these mandated changes to the position
descriptions were as a result of the changes that were being made
within the program itself. The Series 436, which OPM apparently had
created specifically for the canker program had to be streamlined into
a 401 series. There was a lot of discussion and testimony taken with
respect to the plan. All of the members of the management team that
existed at the time of this Tampa management meeting from which this
plan developed were present, including complainant. All had some input
into the plan that was developed. The argument made by complainant was
that the plan was not exercised in an equitable manner based on sex.
However, what the evidence showed was that, in fact, there were two
people, complainant and DD (male), both of whose positions were changed
from their respective supervisory PPQ sub-designation to Mid-level
Managers; that there were, in fact, other PPQ officers whose positions
did not change, although they did intend on advertising them as planned
in the CCEP, but for various reasons they were not permitted to fill
those positions. Therefore, the evidence demonstrated that the plan
was in place to do exactly what they had stated, that they were going
to take all those supervisory PPQ positions that were in citrus canker
eradication and mainstream them into mid-level managers. They had
attempted to exercise this in good faith and they were not permitted to
fill them because of budgetary factors. Complainant argues (and it is
undisputed) that DD did not lose any of his functional responsibilities
in this switch. Complainant, on the other hand, no longer supervised
GS-13s on paper and no longer did some of the things under the assistant
Program Director's responsibilities. Further, complainant was asked to
take on the Regulatory Director position, a position she did not want.
However, the evidence shows that S1 went out of his way to ensure that
while there was a paper change in her title, complainant was no less
important and no less needed for all her expertise in the program.
The AJ found no evidence of sex discrimination as to this agency action.
The AJ then found the following as to the claim that on May 17, 2004,
because of her sex, complainant was not selected for an interview
for the Senior Program Manager position in Raleigh, North Carolina.
Complainant did not put on any evidence other than self-serving statements
to support any kind of an allegation that this action was sex-based.
The testimony of the management officials who were present, both S1 and
D1, when asked about the procedure that was utilized on the selection
panels, they indicated that at first there was the scoring of the
applications, then, at the natural break there was a determination
as to who would be interviewed. There is no evidence that there was
any discriminatory motivation behind the failure to allow complainant
to interview. Management utilized the standard operating procedure for
a position of this magnitude and some people were cut off and were not
interviewed, including men.
The AJ then addressed the claim that in September 2004, D1 deliberately
left complainant out of the loop regarding the status of temporary
employees who volunteered to work in Florida after the hurricane, as
follows: Complainant came to be responsible for finding volunteers, and
it was undisputed that the Regional Manager Director (RMD) had attempted,
in vain, to contact D1 and S1, and therefore, contacted complainant and
was able to reach her. It is also undisputed that complainant did exactly
what she was asked to do promptly, and took time off from her own personal
needs to complete what she was asked to do. However, no further follow-up
was necessary once D1 promptly took what was in fact his responsibility
back from complainant. The AJ found no evidence of discrimination.
Finally, the AJ addressed, as follows, the claim concerning D1's use
of inappropriate and sexually explicit language: It is undisputed
that D1 swore a lot. However, there is no evidence in this record that
D1's profanity was in any way harassing sexually. The evidence in this
record is clear that no one knew that complainant felt that his swearing
was offensive. Additionally, D1 denied ever kissing complainant on the
lips in 2000, and regardless, that is an untimely filed issue as it was
six years ago.
The AJ then concluded that considering all of these sub-issues
individually or collectively, the evidence does not demonstrate that
these incidents rise to the level of severity or pervasiveness that
was anticipated by Congress in enacting Title VII and by the courts
in deciding what a hostile work environment would constitute. The AJ
also found no persuasive evidence of sex-based disparate treatment.
The AJ, therefore, found no discrimination in this case. The agency
subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that she was subjected to discrimination
as alleged. Complainant raises no new arguments on appeal.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Disparate Treatment
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Assuming complainant established a prima facie case of discrimination on
the basis of sex as to the claims of disparate treatment in this case,
management has articulated legitimate, nondiscriminatory reasons for
their actions. The AJ's finding that complainant did not meet her burden
of proving pretext, by a preponderance of the evidence, is supported by
substantial evidence in the record.
Sexual Harassment
To establish a prima facie case of sexual harassment, complainant must
show that: (1) she belongs to a statutorily protected class; (2) she was
subjected to unwelcome conduct related to her gender, including sexual
advances, requests for favors, or other verbal or physical conduct of a
sexual nature; (3) the harassment complained of was based on sex; (4)
the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). 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 (March 8, 1994).
Complainant claimed that D1 kissed her on the lips in 2000. She further
stated the following in her affidavit: "[D1] told me several times he
would spank me. He has run his hands up and down my back. All of these
incidents happened quite a long time ago and I pushed them all out of
my mind. [D1] even tried to kiss me once four years ago when I dropped
him off at his hotel while he was on a trip in Plantation, Florida.
A group of us went out. When I was ready to go home, he asked me to drop
him off in my personal vehicle. He started to try to make out with me.
I just went home. I knew this was sexual harassment, but I never did
anything about it . . ." Report of Investigation (ROI), Exhibit 7A at
6.
The record evidence indicates that the most recent alleged "spanking"
comment occurred at a meeting in Lake Alfred, Florida in January 2003.
Complainant herself asserted that she replied, "I already told you I
might like it." ROI, Exhibits 7A and B. Complainant also stated that
D1 rubbed his hand up and down her back in the conference room where the
meetings were held in Lake Alfred in January 2003. She stated that she
has seen D1 touch another woman's arm kind of guiding her out of a room.
She stated that she never told D1 to stop rubbing her back or kissing
her even though she was uncomfortable with his behavior. She stated
that D1 usually gave her a kiss on the lips and a "full frontal" hug
whenever he saw her but she put a stop to it in the Spring of 2004.
Complainant herself admits that she did not bring the most recent incident
of alleged sexual harassment to the attention of an EEO counselor within
45 days of when it occurred2 (the kiss in April 2004). According to
EEOC Regulation 29 C.F.R. � 1614.105(a)(1), complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity
Counselor within forty-five (45) days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within
forty-five (45) days of the effective date of the action. Therefore,
there is no timely sexual harassment claim in this case, which is what
the AJ correctly concluded.
Harassment
We now address the other allegations of sex-based (as opposed to
sexual) harassment in this complaint. Based on the standards set forth
in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order
to prevail on a claim of harassment, complainant must prove that:
(1) she was subjected to harassment that was sufficiently severe or
pervasive to alter the terms or conditions of employment and create an
abusive or hostile environment; and (2) the harassment was based on her
membership in a protected class. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3,
6; Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). The AJ's finding that the alleged harassment does not rise
to the required level of severity or pervasiveness to be unlawful,
is supported by substantial evidence in the record.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order.
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 25, 2008
__________________
Date
1 Complainant did not suffer a loss of grade or pay.
2 Complainant contends that she in fact, did timely contact an EEO
counselor about the incident, but that she did not provide her name
at that time. Complainant also states that no more sexual harassment
occurred after April 2004.
??
??
??
??
2
0120065034
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036