0120092199
07-21-2009
Annie R. Dorrall, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Annie R. Dorrall,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120092199
Agency No. NAD-2005-00746
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's September 26, 2008 final decision concerning her equal employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Hearing Officer, GS-0930-13, at the agency's National Appeals Division (NAD), Southern Region in Rocky Mount, North Carolina.
On August 15, 2005, complainant filed the instant formal complaint. Therein, complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American), sex (female), color (black) and age (over 40) when:
1. subsequent to completing the Performance Improvement Plan (PIP) on October 15, 2004, she was subjected to incidents (not specified), creating severe stress resulting in her filing for retirement on April 29, 2005, effective May 30, 2005;
2. on May 3, 2005, she received a notice that her employment would be terminated, thus requiring her to change her retirement date to May 30, 2005;
3. she was not provided adequate training and direction to meet the changed proficiency requirements of her position;
4. she was notified of her termination prior to completing an approved, more extensive, writing course that she began on January 5, 2005;
5. she was not allowed to exercise her new writing skills;
6. her attempt to acquire a two-year assignment with a Land-Grant College that required her to remain a USDA employee was destroyed by the termination; and
7. she was denied the usual retirement ceremonies.
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). In accordance with complainant's request, the agency issued a final decision on September 26, 2008, pursuant to 29 C.F.R. � 1614.110(b).
In its September 26, 2008 final decision, the agency found no discrimination. Specifically, the agency found that complainant did not establish a prima facie case of race, sex, color and age discrimination. The agency nevertheless found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding the harassment claim, the agency found that the evidence in the record did not establish that complainant was subjected to harassment based on race, sex, color or age. Specifically, the agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, complainant's first-level supervisor (S1) stated that during the relevant time, he was unaware of any incidents that may have subjected complainant to stress; and that complainant chose to voluntarily retire from agency employment. S1 further stated that from October 15, 2004 through April 28, 2005, complainant's twelve draft decisions were periodically returned to her "due to quality issues." Specifically, S1 stated that all of the draft decisions contained errors, including mechanical and grammatical errors, issue identification,, organization, style logic and analysis. S1 stated that Hearing Officers are expected to issue appeal determinations "that are complete and easily understandable by all parties."
Complainant's second-level supervisor (S2) stated that he had "no way of knowing what may or may not cause [Complainant] stress." S2 further stated that it was his understanding that complainant voluntarily chose to retire from agency employment. S2 stated that during the relevant time, S1 "provided continuous feedback to [Complainant] on her written work as he did all of the Hearing Officers under his supervision." Specifically, S2 stated that S1 provided the Hearing Officers feedback "on the strengths and weaknesses of their draft determinations and provided suggestions on ways to improve the weak areas of the document." S2 further stated that Hearing Officers were expected to write determinations "in a manner that they would be understood by the audience of the appeal case: appellant, agency, and further reviewing authority. This would entail preparing a determination that is clear and concise with respect to issue identification, organization, style, logic and analysis, and mechanics."
Regarding claim 2, S1 stated that complainant "was not issued a notice of termination or was she required to change her retirement date." S1 further stated that he was involved in management's decision to issue complainant a Notice of Proposed Termination. Specifically, S1 stated "as her immediate supervisor, I made the decision that [Complainant's] performance was unacceptable." S1 stated that he gave complainant feedback concerning her performance and that seven out of her twelve draft decisions "were below the competent level." S1 also stated that three of complainant's final appeal determinations "were below the competent level."
S2 stated that complainant "has never been issued a 'notice of termination.' Further, it is my understanding that [Complainant] voluntarily selected her retirement date."
The Assistant Director for Management (AD) stated that complainant "was never issued a notice of termination. She was issued a 'Notice of Proposed Removal'. This is a process (as defined in 5 CFR Part 752) to allow federal employees the opportunity to present orally and/or in writing evidence that they believe should be considered before a final determination is made." AD stated that on April 29, 2005, complainant sent an email to S1 "in the evening after work hours advising of her intent to retire. The Notice of Proposed Removal was sent to the Southern Regional Office during work hours on Friday, April 29, 2005. NAD and FSIS were unaware of [Complainant's] retirement notice was sent before the proposal arrived in her possession." Furthermore, AD stated after the agency received complainant's resignation notice, it decided to proceed with the removal proceedings "due to the fact that employees change their mind."
Regarding claim 3, S1 stated that training in holistic writing was offered to Hearing Officers in 2002, 2003 and 2004; and that Hearing Officers "were expected to use the Holistic Writing training to improve the quality of their appeal determinations." S1 further stated that "there were no new job proficiency requirements instituted at any time by NAD. Training is a continuing process to improve the skills of Hearing Officers. Annually, the Hearing Officer and [his or her] supervisor prepare an Individual Development Plan. Training is normally developed, provided or arranged by the Planning, Training and Quality Control Section in consultation with the Regional managers."
Regarding claim 4, S1 acknowledged that complainant enrolled in a writing course at a local community college in January 2005. S1 stated that complainant selected the writing course and the NAD "approved the course selection." S1 stated that complainant "enrolled in the course to enhance her writing skills, not to resolve any deficiencies.
Regarding claim 5, S1 stated that complainant "was encouraged to use any skills she might possess in the completion of her written work products."
Regarding claim 6, S1 stated that he had no knowledge of complainant's efforts to obtain an assignment with a Land Grant College. Specifically, S1 stated that complainant's efforts "to obtain a two-year assignment with a Land Grant College were her own. I am unaware that NAD had any involvement with such."
S2 stated that he was not aware of complainant's attempt to acquire a two-year assignment with a Land Grant College. S1 stated "I am not aware of the process individuals follow when seeking assignments to Land Grant Colleges. In addition, managers/supervisors within NAD have no involvement with the Land Grant College or any other assignment with an outside entity. By statute, NAD employees are prohibited from doing work for other than NAD."
Regarding claim 7, S1 stated that there were no usual retirement ceremonies. S1 stated "I am unaware of any policies that NAD has regarding usual retirement ceremonies. As I recall, [Complainant] received a plaque and retirement gift."
S2 stated that "there were no usual retirement ceremonies. Generally, when employees were leaving the NAD Southern Region for another job, retirement, etc., the other Regional employees were offered the opportunity to voluntarily contribute towards a gift. From the funds collected, a gift was purchased for and presented to the employee." S2 further stated that the decision as to whether a retiree will be invited to the Regional Office for presentation of the gift and plaque depends "on a variety of factors such as the time frame from notice of retirement to the retirement date; the supervisor and employee's calendars; the time frame in which the office closure had to be completed and the equipment returned to the Regional Office; distance between the employee's duty station and the Regional Office, etc." S2 stated that complainant was presented a plaque and a retirement gift from her duty station.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of 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, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment.
On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
July 21, 2009
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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