0120111597
04-19-2012
Angela A. Carrillo, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Angela A. Carrillo,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120111597
Agency No. FWS-09-0291
DECISION
On February 7, 2011, Complainant filed an appeal from the Agency's January 5, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Officer in the Agency's Fish and Wildlife Service at the Agency's work facility in Albuquerque, New Mexico.
On July 8, 2009, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the bases of her race (Hispanic) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 11, 2009, Complainant was directly reassigned from the Division of Administrative Services to the Office of the Assistant Regional Director, Budget and Administration.
2. On April 20, 2009, Complainant received a letter dated April 15, 2009, in which she was notified of a fourteen day suspension, effective April 21, 2009 to May 5, 2009 (less than 24 hours notice).
3. On March 5, 2009, Complainant was denied privileges such as working on the web. Complainant felt that she had been singled out by being told she was not to work on the web, whereas other employees of the Region were not given the same directive.
4. On January 15, 2009, Complainant received an invalid and unapproved Fiscal Year 2008 performance appraisal which she alleges was not signed by the appropriate official and was received three and a half months after the reporting period, which is in violation of Agency policies.
5. On September 26, 2008, Complainant received a Notice to Detail stating that she will report on a detail to the New Mexico Ecological Services Field Office on Monday, September 29, 2008, until further notice, because she allegedly made inappropriate comments in the presence of her new Program Assistant. Complainant was ultimately required to report to her detail on Thursday October 2, 2008, when she was detailed to another office shortly after arriving at the initial office.
Complainant amended her complaint to include a claim that she was subjected to reprisal as follows:
6. On March 15, 2010, Complainant became aware of a directive to continue prohibiting her from any web page development activities.
Complainant claimed that the aforementioned incidents constituted a hostile work environment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final order pursuant to 29 C.F.R. � 1614.110(b). The Agency determined that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Final Order at 14.
With regard to claim (1), the Agency noted that the Assistant Regional Director stated that management created a position in order to facilitate Complainant's reassignment from her position as a supervisor to a non-Supervisory position of like grade. Id. at 5. According to the Assistant Regional Director, Complainant's reassignment was effected pursuant to the Office of Human Resources' recommendation that she be removed from supervision due to the egregious nature of her offensive behavior and actions against those under her supervision and to address the EEO complaints from them against her. Id. The Assistant Regional Director further stated that Complainant's prior supervisor had counseled Complainant but that she ignored the counseling and continued to engage in discriminatory behavior against her subordinates. Id.
As to the Letter of Suspension received by Complainant and referenced in claim (2), the Assistant Regional Director stated that it was issued in response to Complainant's repeated use of racially and sexually offensive language that resulted in complaints from her subordinates and others in the office. Id. The Assistant Regional Director stated that the Letter of Suspension was also issued to Complainant due to her attempt to intimidate her employees during the investigation of their complaints and in the performance of their day-to-day duties. Id. The Assistant Regional Director considered the responses provided by Complainant to the charges against her, but found that they did not substantially alter the facts or provide any real mitigating factors for consideration. Id. at 6.
With regard to claim (3), the Assistant Regional Director stated that in December 2006, the Agency requested that all employees stop working on regional and national websites because it had hired a Web Master and was transitioning into having the Web Master handle all web-related management and design. Id. According to the Assistant Regional Director, Complainant disobeyed this instruction and continued to work on web design and also created friction with the new Web Master. Id. at 7. The Assistant Regional Director stated that the Regional Director needed to specifically direct Complainant to cease working on all Fish and Wildlife Service websites. Id. Despite this order, the Assistant Regional Director noted that Complainant on at least two occasions continued working on regional and national websites and thus, on March 5, 2009, he directed her again to cease work. Id. The Assistant Regional Director maintained despite Complainant's arguments to the contrary that web work was never a primary part of Complainant's job description or duties during the time span covered by the complaint. Id. The Assistant Regional Director acknowledged that some individuals were allowed to resume web work in coordination with the Web Master, but that Complainant was not given such permission in light of her demonstrated disregard for supervisory direction and inability to work cooperatively with the Web Master. Id.
With respect to claim (6), the Assistant Regional Director stated that the directive to continue prohibiting Complainant from any webpage development activities was a reissuance of the directive which originally was issued in 2006. Id. The Assistant Regional Director explained that based on her past actions, Complainant was not allowed to work on regional websites, even if she applied for positions that included web design. Id. The Regional Director stated that no employee in the region is supposed to do web work unless it is specifically in their position description and is coordinated with their supervisor and the regional Web Master. Id. Complainant's supervisor stated that the directive was issued without providing a reason and that he complained that it was inconsistent with the expectations he had in filling the position, as he specifically sought someone to perform web based and information technology activities, not only budget support. Id. at 8. Complainant's supervisor indicated that he thought Complainant had been retaliated against because the directive was issued to her and not to the position. Id.
With regard to claim (4), the Assistant Regional Director denied that there are any rules and regulations stating deadlines for delivery of performance reviews. Id. at 9. According to the Assistant Regional Director, Complainant's first level supervisor at the relevant time had been instructed not to complete Complainant's performance appraisal until the complaints filed by Complainant's subordinates were fully investigated and conclusions were issued. Id. The Employee Relations Specialist stated that policy was followed when the Acting Deputy Regional Director signed Complainant's performance appraisal as a reviewing official. Id. at 10.
As for claim (5), Complainant stated that she was ordered to report to the New Mexico Ecological Services Field Office and that if she did not, she would be placed on absence without leave. Id. The Assistant Regional Director stated that he ordered the detail due to the EEO complaints filed by Complainant's subordinates against her. Id. According to the Assistant Regional Director, the Human Resources Office recommended that Complainant be removed from her supervisory role while it investigated the complaints of intimidation against Complainant. Id. As for Complainant's detail to the New Mexico Fisheries Resource Office shortly after arriving at her initial detail, the Assistant Regional Director noted that the initial office determined that Complainant was not willing or capable of doing the work, and in contrast, the subsequent detail indicated they had suitable work for Complainant. Id. Complainant also expressed a preference for working at the second assignment for the remainder of her detail. Id.
The Agency determined that Complainant failed to establish a prima facie case of race or reprisal discrimination. Id. at 11. The Agency also determined that Complainant failed to set forth a prima facie case of harassment on the alleged bases. Id. According to the Agency, Complainant failed to show that other Administrative Officers, outside of her protected race, were allowed to perform web management design, were not reassigned or detailed away from their positions when facing EEO claims filed against them, received privileges and benefits of employment that she did not receive, or otherwise treated better by the relevant officials. Id. With regard to Complainant's claim of reprisal, the Agency determined that Complainant failed to show a nexus between the events at issue and the protected activity. Id. The Agency noted that Complainant's prior EEO activity occurred on November 7, 2006, and that the first alleged relevant action against Complainant occurred on September 26, 2008. Id. The Agency concluded that 22 months is too remote a period to establish causality. Id.
Assuming arguendo that Complainant had established a prima facie case of discrimination under the alleged bases, the Agency determined that it articulated legitimate, nondiscriminatory reasons for its actions as set forth above. Id. The Agency noted that Complainant attempted to show pretext by arguing that she was singled out for sanctions. Id. at 13. However, the Agency stated that seven of Complainant's subordinates had filed discrimination cases against her and provided evidence to show the claims were not arbitrary. Id. at 12. The Agency stated that it took prompt remedial action to stop the discrimination. Id.
With regard to Complainant's claim of harassment, the Agency determined that Complainant failed to demonstrate a causal connection between the Agency's actions and the alleged bases or that unwelcome personal slurs or other denigrating or insulting verbal or physical conduct ever occurred. Id. at 13. Further, the Agency determined that Complainant submitted insufficient evidence that severe or pervasive harassment affected her terms or conditions of employment and/or unreasonably interfered with her work performance so as to create a hostile work environment. Id. The Agency reasoned that the Assistant Regional Director and Complainant's supervisor acted within their discretion when they counseled and subsequently sanctioned Complainant for her behavior, including her disregard for orders and management's authority. Id. With regard to the Regional Director's prohibition against Complainant engaging in web design activity, the Agency stated that although Complainant was treated differently than employees who were eventually allowed to resume web management functions under the approval of their supervisor and under the supervision of the Web Manager, the prohibition was based on Complainant's past conduct issues rather than her race or prior EEO activity. Id. at 14. The Agency also determined that Complainant failed to show that management's web design limitation negatively impacted her performance evaluation. Id. According to the Agency, Complainant's Minimally Successful rating in Fiscal Year 2008 was based on her failure in the critical element of Management of Human Capital as Complainant failed to treat employees with respect and courtesy, did not provide training in a helpful and respectful manner, was demeaning and threatening to other employees, and in abusing her power she failed to follow her supervisor's direction. Id. Thereafter, Complainant filed the instant appeal.
In response, the Agency asserts that the record supports its determination that it provided nondiscriminatory reasons for its actions and that management's actions were not motivated by illegal discrimination. The Agency notes that preliminary results of the investigation of Complainant's conduct showed that she uttered such remarks as he likes his coffee just like he likes his men, black; telling an employee who was setting up her office furniture to "just nigger-rig it"; calling a new employee gay and forcing him to transfer to another division; and interfering in her subordinates' EEO investigations by questioning them about their statements.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the Complainant's statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
We shall assume arguendo that Complainant established a prima facie case of race and reprisal discrimination with regard to each claim. As for claim (1), the Agency stated that Complainant was reassigned from the Division of Administrative Services to the Office of the Assistant Regional Director, Budget and Administration, due to the egregious nature of her offensive behavior and actions against those under her supervision and to address the EEO complaints from them against her. Complainant had been counseled but had continued to engage in unacceptable behavior against her subordinates. With regard to claim (2), the Agency stated that the Letter of Suspension was issued to Complainant due to her repeated use of racially and sexually offensive language that resulted in complaints by her subordinates and others in the office. The Letter of Suspension was also issued to Complainant based on her attempt to intimidate her employees during the investigation of their complaints and in the performance of their regular duties. With respect to claim (3), the Agency stated that despite the fact Complainant had received a specific directive to cease working on all Fish and Wildlife Service websites, she on at least two occasions continued working on regional and national websites. Thus, on March 5, 2009, she was again directed to cease work on such websites. According to the Assistant Regional Director, performing web work was never a primary part of Complainant's job description or duties during the time span covered by the complaint. As to claim (6), the Assistant Regional Director explained that based on her past actions, Complainant was not allowed to work on regional websites, even if she applied for positions that include web design. According to the Regional Director, no employee in the Region was supposed to perform web work unless it was specifically in their position description and was coordinated with their supervisor and the regional Web Master.
In terms of claim (4), the Assistant Regional Director stated that Complainant's supervisor had been instructed not to complete Complainant's performance evaluation until the complaints filed by Complainant's subordinates were fully investigated and conclusions were drawn. The Agency also indicated that there was nothing inappropriate about the Acting Deputy Regional Director signing Complainant's performance evaluation as a reviewing official. With regard to claim (5), the Agency stated that Complainant was assigned the relevant detail due to the EEO complaints filed by her subordinates against her. Complainant was subsequently assigned a different detail because the assignment had more suitable work for her and she expressed a preference for working that detail as opposed to the initial assignment. We find that the Agency articulated legitimate, nondiscriminatory reasons for the actions at issue.
Complainant attempts to establish pretext by arguing that the Regional Director sought to retaliate against her for the complaint she filed against him in November 2006, regarding a nonselection. Complainant believes that the Regional Director influenced the Assistant Regional Director to issue her the Letter of Suspension and the reassignment to the Office of the Assistant Regional Director. Complainant maintains that performing web development/management was part of her position description. With regard to the directive of March 5, 2009, Complainant states that she informed the Assistant Regional Director that she had stopped all Region two web work except what was asked and approved by others. With respect to claim (4), Complainant states that she received her performance evaluation on January 15, 2009, which was three and a half months after the reporting period. Complainant argues that the performance appraisal was invalid because her second-line supervisor, the Assistant Regional Director, did not sign the evaluation as an approving official. As for claim (6), Complainant argues that the Regional Director's retaliatory motivation is evidenced by the fact that no other Region two Fish and Wildlife employees are prohibited from doing web development and management work except her. Complainant argues that nothing has been placed in writing as to the Regional Director's reasons and conditions for the restrictions on her performing webpage development/management work.
With regard to the various claims made against her by her subordinates, Complainant states that she did not refer to one of her employees as being gay; that she did not say this employee likes his coffee as he likes his men, black; that she did not tell a subordinate that she could get rid of her just like that and that she did not refer to her as a "dumbass"; and she denied that one of her employees retired due to her low quality supervision.
We find that Complainant has failed to establish that the Agency's legitimate, nondiscriminatory reasons for the actions at issue were pretext intended to hide discriminatory intent. The record is replete with accusations against Complainant by her subordinates of unprofessional statements allegedly uttered by Complainant. Some remarks were racially offensive, others were sexually offensive and additional comments were unacceptable. In light of the fact that there were seven EEO complaints filed against Complainant, the Agency had sufficient grounds for taking appropriate prompt measures while it investigated these complaints. The reassignments of Complainant and the Letter of Suspension were warranted based on a significant number of charges against her of improper conduct. With regard to the directives issued to Complainant prohibiting her from engaging in website work, the record establishes that despite the fact that employees were requested in December 2006, to stop working on regional and national websites due to the hiring of a Web Master, Complainant still continued to work on regional and national websites. Given the disregard that Complainant demonstrated for supervisory direction, it is evident that the Agency was justified in continuing to prohibit her from any website development activities. As for Complainant's performance appraisal, we discern no evidence that Complainant was subjected to disparate treatment or reprisal as it was clearly reasonable for the Agency to delay issuing her performance appraisal until the investigation of the complaints against her was completed. Further, there has been no showing that the Agency violated its procedures and discriminated against Complainant by not having her second-line supervisor sign her performance evaluation.
With regard to Complainant's claim of harassment, the record does not support this claim as the Agency, as explained above, had sufficient justification for taking the actions at issue. Moreover, the matters under review are not of sufficient severity or pervasiveness to constitute a hostile work environment. We find that Complainant has failed to establish that the Agency subjected her to discriminatory harassment or disparate treatment on the alleged bases.
CONCLUSION
The Agency's determination in its final action that no discrimination occurred 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
April 19, 2012
__________________
Date
2
0120111597
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111597