0120070918
07-14-2009
Anjana A. Dossa, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Anjana A. Dossa,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120070918
Hearing No. 280-2005-00255X
Agency No. 7Q1L0415F07
DECISION
On December 6, 2006, complainant filed an appeal from the agency's
November 7, 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as Chief of Engineering Flight, GS-13, for 22nd Civil Engineering Squadron
at McConnell, Kansas Air Force Base. The record reveals that complainant
has been Chief of Engineering Flight1 since she was hired by the agency
in October 1999. Complainant was hired and supervised by the Deputy
Base Civil Engineer.
The record further reveals that complainant's supervisor rated complainant
"acceptable" on her annual performance appraisals in March 2001, March
2002, and April 2003. Nonetheless, the supervisor noted on the April
2003 appraisal that complainant needed to improve her performance in the
critical elements of communication and working relationships "in order
to avoid a 'does not meet' rating in the future." In October 2003, the
supervisor issued complainant an "Unacceptable Rating and Performance
Improvement Plan (PIP)" memorandum in which the supervisor stated that
complainant had not met six critical elements of her position. The
memorandum gave complainant ninety days to improve her performance.
The record also reveals that on May 27, 2003, complainant requested
leave for every Monday in the months of June, July, and August 2003.
Complainant's supervisor denied the request, except for the first three
Mondays in June 2003.
On November 14, 2003, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of national origin (Indian)
and in reprisal for prior protected EEO activity when:
1. On October 7, 2003, the agency issued complainant an unfair performance
appraisal; and
2. On June 19, 2003, the agency denied complainant's request for leave.
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 August 28 and 29,
2006.
At the hearing, complainant testified that as the Chief of Engineering
Flight, she was responsible for 24 subordinate employees, including
element chiefs, engineers, technicians, and administrative staff.
Complainant testified that after the September 11, 2001 terrorist attacks,
the workload of her flight division greatly increased, while the number
of employees decreased because of military deployments and retirements.
Complainant stated that nine new employees were hired for the division
in 2002, but the budget for programs in her flight division increased
from $10 million in 2002 to over $40 million by September 2003.
Complainant testified that in April 2003, her supervisor directed her
to attend a 9:00 a.m. operations meeting, but a co-worker told her that
the meeting was postponed until 9:30 a.m. Complainant stated that when
she arrived at the meeting at 9:30 a.m., she learned that the meeting
had already started. Complainant maintained that her exclusion from
the meeting was discriminatory.
Complainant also testified that she worked so much that she became sick
and "broke down" in 2003. She stated that she requested leave for every
Monday in June, July, and August 2003, but her supervisor only approved
her for leave for the first three Mondays in June. Complainant testified
that she thought that her flight division would have been fully staffed
on the dates she requested leave.
Complainant further testified that despite the increased workload, she met
all contract goals by September 2003. She stated that she communicated
with her staff by telephone, email, and notes, although one subordinate
did not communicate with her. Complainant stated that she was a not a
"pushy" manager, but she tried to solve problems before they escalated.
Complainant's supervisor testified that complainant's first three
annual performance appraisals were "somewhat" inflated because
complainant was starting her position with a "learning curve", but
complainant's performance deteriorated over time. The supervisor
stated that he rated complainant "does not meet" on her October 2003
appraisal because complainant displayed communication and interpersonal
relationship problems and did not complete assignments in a timely manner.
The supervisor stated that he counseled complainant many times about
the expectations for her position. The supervisor further stated that
complainant often complained to him about employees and "finger pointed"
instead of taking responsibility. The supervisor also stated that
complainant's subordinates complained about complainant. The supervisor
testified that an employee informed him that complainant had ordered
her not to talk to the "little people" on her staff. The supervisor
stated that he issued complainant a PIP because complainant received a
"does not meet" evaluation and needed an opportunity to improve on her
performance.
According to complainant's supervisor, he disapproved her request for
leave on June 23, 2003 because there was a meeting on that date that
required the participation of all flight chiefs. The supervisor further
stated that he denied complainant's request for annual leave on the
remaining Mondays in June, July, and August 2003 because of the heavy
workload the flight division had to complete due to record contract
funding at the end of fiscal year 2003. The supervisor testified that
complainant requested leave during the most critical time for program
execution.
On September 26, 2006, the AJ issued a decision in which she found that
complainant was not subjected to unlawful discrimination. Specifically,
the AJ determined that the record was "replete with documentation
regarding deficiencies in complainant's performance as a manager."
The AJ determined that the increased workload placed on complainant was
because of September 11, 2001, and was not controlled by her first-line
and second-line supervisors. The AJ further noted that complainant's
supervisor testified that employees referenced her as their reason for
leaving the agency; complainant became less assessable to her employees,
causing workflow problems; and, complainant "disengaged" herself.
The AJ further determined that complainant's testimony regarding her
numerous issues with subordinates bolstered management's testimony that
complainant lacked the skills to manage her flight division.
The AJ further stated that "complainant's testimony was so contradictory
as to render it incredible," and complainant was frequently non-responsive
to hearing questions, including questions posed by her attorney.
The AJ concluded that complainant's hearing testimony was consistent
with management's testimony that complainant's communication skills
were lacking. With respect to claim 2, the AJ found that the agency
provided legitimate, non-discriminatory reasons for denying complainant's
leave requests that complainant failed to show were pretextual.
The agency subsequently issued a final order fully adopting the AJ's
findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends the AJ erred in finding no discrimination.
Complainant maintained that she deserved a higher appraisal because she
conducted weekly staff meetings; received good ratings for the first
three years she was in her position; her workload increased in 2003; and,
she suffered emotionally and physically because of the increased workload
and larger staff. Complainant maintains that her supervisor's testimony
lacked reasoned explanations that were supported by documentation.
The agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
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).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas 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).
Assuming arguendo that complainant established a prima facie case of
reprisal and national origin discrimination, we nonetheless find that
the agency articulated legitimate, non-discriminatory reasons for its
actions, as detailed above. Complainant contends that she deserved a
higher appraisal because she conducted weekly staff meetings; received
good ratings for the first three years she was in her position; and
her workload increased in 2003. Complainant also maintained that she
suffered emotionally and physically because of the increased workload
and the larger staff. Despite the weekly meetings, however, witnesses
testified that complainant submitted projects in an untimely manner;
displayed a controlling and dismissive attitude toward employees; was
unresponsive to employees' questions; refused to listen to employees who
disagreed with her; referred to staff as "little people;" and, caused
employees to seek employment elsewhere. While the record reflects that
Engineering Flight's workload skyrocketed after the September 11, 2001
terrorist attacks, the increased workload does not justify the serious
lack of interpersonal skills that was reportedly displayed by complainant.
Moreover, complainant was not entitled to receive satisfactory ratings in
perpetuity solely because she received satisfactory annual appraisals in
the past. Complainant further contends that her supervisor's testimony
lacked reasoned explanations that were supported by documentation.
As noted above, however, complainant's performance and interpersonal
problems were corroborated by several witnesses. Further, the record
contains a copy of the supervisor's diary and memoranda in which
the supervisor contemporaneously noted deficiencies in complainant's
performance.
Finally, we note that complainant contends that a Commander retaliated
against her after she sent an April 29, 2003 email to management in which
she asserted that her exclusion from an April 2003 meeting was because
of discrimination. The Commander testified that complainant did not
cite any basis for her claim of discrimination, and he simply asked her
supervisor to address the matter with her because he "had absolutely no
idea where she was coming from." Complainant testified that after she
sent the email alleging discrimination, she went to her supervisor to
discuss her exclusion from the meeting. According to complainant, her
supervisor did not ask her any questions, stated that he would "follow up"
on her concerns, but failed to follow up on the matter. We do not find
that management's actions here were reasonably likely to deter complainant
from engaging in the EEO process, nor do they reflect retaliatory animus
against complainant. Like the AJ, we note that complainant did in fact
seek EEO counseling following the subsequent denial of her leave request
and her performance evaluation. Moreover, there was no testimony from
complainant that this matter had any effect on her decision to contact an
EEO counselor. We also find, for the reasons stated above, no persuasive
evidence that this matter played any role in the denial of complainant's
leave request or her performance evaluation.
CONCLUSION
We find that the AJ's credibility determinations are not contradicted
by any evidence or testimony. We further find that substantial evidence
supports the AJ's conclusion that complainant failed to rebut the agency's
explanations as pretext for unlawful discrimination. Therefore, we find
that the AJ properly found no discrimination. Accordingly, based on a
thorough review of the record, the Commission affirms the agency's final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
____07/14/09______________
Date
1 The Engineering Flight division managed construction contracts and
projects.
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2
0120070918
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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