01a51968
07-07-2005
Arsilia C. Alvarez, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Land Management), Agency.
Arsilia C. Alvarez v. Department of the Interior
01A51968
July 7, 2005
.
Arsilia C. Alvarez,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Land Management),
Agency.
Appeal No. 01A51968
Agency No. LLM-03-039
Hearing No. 350-2004-0094X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, an Accounting Technician, GS-6, at the agency's
Administrative Support Services, Roswell Field Office in Roswell, New
Mexico, filed a formal EEO complaint on August 6, 2003. Complainant
claimed that she was subjected to harassment in reprisal for prior
protected activity (reporting ethics violations; prior EEO complaints;
and the prior EEO complaint of her sister) when:
(1) on March 25, 2003, the Roswell Field Manager verbally accused her
of sending e-mail messages to employees "trying to catch someone doing
something wrong" regarding the purchase of supplies at Office Max;
(2) on March 25, 2003, the Roswell Assistant Field Manager for Support
Services (AFM SS) issued her a letter threatening to take disciplinary
action against her for failure to follow procedures outlined in a June
18, 2001 Action Plan for Roswell;
(3) on February 24, 2003, she was not able to perform her human resources
management duties because the lock to the door where all personnel files
were kept was changed. Complainant was never notified of the change
in locks; given a key to the door; or advised that she would no longer
perform Human Resources (HR) duties.
(4) the Roswell AFM SS and Team Lead have created a hostile work
environment towards her by:
a. the AFM SS not communicating with her;
b. removing her from being a back-up Team Lead; and
c. not being afforded the opportunity to attend Ideas training.
(5) beginning January 2002, complainant had worked under a hostile
work environment for reporting ethics violations to the State Personnel
Officer; and
(6) in June 2003, when complainant's daughter became a Roswell BLM
volunteer, the Roswell AFM SS decided not to pay volunteers.
By letter dated September 11, 2003, complainant requested that her formal
complaint be amended to include three additional claims:
on September 9, 2003, during mediation, complainant reported to the
Associate State Director the hiring practices at the Roswell Field
Office. Complainant further claimed that the Associate State Director
quoted "You will never be working in Human Resources for us again;"
in September 2003, she informed her Team Lead that she felt that the
Team Lead was not treating her and a named employee fairly because
she was always watching their time and putting it on the calendar.
Complainant further claimed that the Team Lead sent an e-mail to all
administrative-personnel staff stating that complainant was accusing her
of only posting the named employee and her time on the sign-out calendar
in Support Services; and
in June 2003, AFM SS stopped paying volunteers as soon as complainant's
daughter decided to be an agency volunteer.
On September 19, 2003, the agency issued a partial dismissal. The agency
accepted claims (1) through (4) for investigation. The agency dismissed
claims (5) and (6) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim. Regarding claim (5), the agency determined that the matter
identified therein is not within its jurisdiction, but rather is under
the jurisdiction of the Office of Special Counsel. Regarding claim (6),
the agency determined that complainant failed to specify any personal
loss or harm that she suffered with respect to a term, condition or
privilege of employment as a result of the alleged incident.
Regarding the September 11, 2003 request to amend the complaint with
three additional claims, the agency amended the complaint to include the
matter concerning the September 9, 2003 mediation, finding that it was
related to claim (3) which was accepted for investigation. The agency,
however, determined that it would not amend the formal complaint to
include complainant's two claims concerning the September 2003 and the
June 2003 incidents. Specifically, the agency determined that they were
related to claims (5) and (6) which were not accepted for investigation.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On September 1, 2004, the AJ issued a Notice of Intent to
Issue a Decision Without a Hearing, allowing the parties to file a written
response to the Notice. The record reveals that both parties responded.
On October 28, 2004, the AJ issued a decision without a hearing,
finding no discrimination with regard to claims (1) - (4). Moreover,
the AJ concluded that complainant did not establish a prima facie case
of harassment. The AJ noted that complainant and her supervisors had
interpersonal and communication problems; however, the AJ found that
complainant failed to demonstrate that the incidents complained of
were sufficiently severe or pervasive so as to alter the conditions of
complainant's employment.
The AJ further concluded that even if complainant were subjected to
harassment, she did not provide any evidence which created a nexus
between the alleged harassment and her prior protected activity. As to
complainant's claim that she was subjected to harassment because her
sister filed an EEO complaint in August 2000, the AJ concluded that the
EEO complaint of complainant's sister could not have been a catalyst
for the alleged harassment because the pattern of behavior complainant
was subjected to started before her sister filed an EEO complaint.
Regarding claim (1), the record reflects that the Field Manager stated
that on March 25, 2003, he discussed with complainant the e-mail messages
she sent to other employees. The Field Manager stated that he reminded
complainant that the named employee "who purchased the products, was new
and may not have known the procedures." The Field Manager stated that
he informed complainant that instead of sending an accusatory email, a
more constructive approach would have been to have spoken with the named
employee. The Field Manager stated that he also informed complainant
that her e-mail "looked as if she was trying to get someone in trouble as
opposed to solving the problem." Furthermore, the Field Manager stated
that he did not subject complainant to a hostile work environment,
and that he had met with complainant on many occasions regarding her
concerns, and that such meetings have consistently been conducted in a
professional manner.
Regarding claim (2), the record reflects that complainant's immediate
supervisor (S1), also the Assistant Field Manager of Support Services,
stated that prior to a June 18, 2001 Action Plan, complainant "took
every issue she had" to the Field Manager. The S1 stated that the
purpose of the Action Plan was to strengthen the support organization
by outlining the �chain of command� for any employee to pursue relating
to any concerns they may have instead of taking such concerns to the
Field Manager. The S1 further stated that on March 13, 2003, the Field
Manager directed him to hand out the Action Plan during the March 17,
2003 division meeting to remind other employees, including complainant,
of the proper steps to take if they had any concerns. The S1 stated
that complainant did not follow the chain of command when she contacted
the Field Manager, instead of contacting him, concerning the purchase
of office supplies at Office Max. The S1 stated that on March 25,
2003, he issued complainant a letter concerning her failure to follow
the chain of command by not sharing her concerns about the purchase of
office supplies with him. The S1 stated that he reminded complainant
to bring any questions and issues about the Support Services to him, and
that failure to follow the procedure may result in disciplinary action.
Regarding claim (3), on February 24, 2003, the S1 stated that in either
January or February 2003, the Team Lead informed him that one of her
credit card purchase receipts was missing, and shared her concerns
because she was accountable for all the credit card records. The S1
further stated that the Team Lead recommended that the locks on the
door be changed "because several people had keys to the lock on the
door where these files were maintained." The S1 stated that he agreed
with the Team Lead's recommendation because he "felt [Team Lead's] need
to secure those records outweighed the need for [Complainant] to have
access to the HR files." The S1 stated that complainant's claim that
because she did not have access to the files, she was unable to perform
her HR duties was "inaccurate." The S1 stated that complainant could
still complete the majority of her HR work through the HR computer system.
The record reflects that in her affidavit, the Team Lead stated that one
morning in the spring of 2003, she returned to her office and discovered
that her door was unlocked. The Team Lead further stated that she noticed
some of her credit card records were missing. The Team Lead stated
"I maintain not only confidential HR records in my office, but also
confidential credit records and numbers." The Team Lead stated that she
informed the S1 that "I felt only he and I needed a key to my office."
The Team Lead stated that she explained to S1 that complainant could
perform most of her HR duties on the computer, and that "it was not
necessary for her to have access to the hard files."
Regarding claim (4), the S1 stated that he made every effort to
communicate with complainant but that complainant "seems to think that I
am to report back to her on every complaint she makes." The S1 stated
that he communicates with complainant, as he does with all employees.
The S1 stated that when he greets complainant in the morning, she
frequently makes no response. The S1 stated that complainant "does
not take efforts to initiate communication with me." The S1 stated that
two of his employees informed him that complainant was subjecting them
to a hostile work environment.
The Team Lead stated that she had never seen the S1 refuse to talk
to complainant. The Team Lead further stated that complainant "has a
problem with communication herself." Specifically, the Team Lead stated
that complainant would "send me email after email after email and never
accept the answer I give her." The Team Lead stated that one of her team
members filed a complaint claiming that complainant was stalking her.
Furthermore, the Team Lead stated "I truly believe that any hostile work
environment she contends exists here is of her own making."
As to complainant's claim that she was subjected to a hostile work
environment when she was removed from being a back-up Team Lead, the S1
stated that because the Team Lead position was established, an official
roster of back-ups was established. The S1 further stated that after the
Team Lead left, a named employee was detailed to the position of Team
Lead and wanted to establish a procedure for back-up in her absence.
The S1 stated that during the relevant period, a named employee and
complainant sent the detailed Team Lead and him an e-mail "stating they
neither one wanted to serve as back-up." The S1 stated that after a
named employee became the Team Lead, she did not want to establish any
type of back-up roster.
The Team Lead stated that when she took over the position of Team Lead,
she tried to rotate the back-up Team Lead responsibilities but there
were some problems "because the back-ups made inappropriate decisions
in my absence." The Team Lead stated that as a result, she and the S1
decided that "the back-up for me would be him if he was in or his Acting."
As to complainant's claim that she was subjected to a hostile work
environment when she was not afforded the opportunity to attend Ideas
training, the S1 stated that Ideas is the agency's computer system
utilized for purchases of supplies over $2,500.00. The S1 stated that
management "here understood that the persons making these purchases were
the persons who needed the training." The S1 stated that in October 2001,
he and six other employees attended the Ideas training. The S1 stated
that complainant did not attend the October 2001 training because she
did not need to make any purchases over $2,500.00. The S1, however.
stated that recently complainant's request to attend Ideas training
was approved, and that she attended the training on March 27, 2003.
The Team Lead stated that complainant had been allowed "more training"
than any of her team members including IDEAS training.
Regarding claim (5), the AJ determined that this claim was comprised of
the matter that complainant began sending messages to agency management
regarding the purportedly improper conduct of co-workers; and that she
specifically claimed that she was harassed in reprisal for contacting
the Ethics Office on several occasions to report procurement violations.
The AJ assumed arguendo that complainant was harassed in retaliation
for contacting the Ethics Office. However, the AJ determined that the
behavior did not violate any of the discrimination statutes enforced by
the Commission. The AJ found that complainant's reporting of missed
sale proceeds, improper cell phone usage, or improper procurement
practices, does not constitute �protected activity� within the meaning
of the anti-discrimination statutes enforced by the Commission, or its
implementing regulations.
Regarding complainant's amended claim regarding the September 9,
2003 mediation wherein the Associate State Director made a statement
to her that she would never work in the Human Resources again, the
record reflects that the Associate State Director stated that during
the relevant time period his duty location was in Santa Fe, New Mexico.
The Associate State Director further stated that he was not in the Roswell
Field Office on a "day-to-day" basis; and that he had no knowledge of
complainant's claim.
The agency implemented the AJ's decision in a final order dated December
2, 2004. It is this decision that is the subject of the instant appeal.
On appeal, complainant contends that ever since she was removed from Human
Resources on September 9, 2003, she was subjected to further harassment
by management officials.
AJ's determination on the merits
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 patterned or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
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 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. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). 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).
Complainant failed to show that she was subjected to a hostile work
environment because the record does not support a determination that the
alleged four incidents identified in claims (1) - (4), when considered
together, constitute a hostile work environment.
Moreover, we note that complainant, on appeal, raises new claims after
she was removed from Human Resources on September 9, 2003. We note
that these claims were not previously raised. It is inappropriate for
complainant to raise these new claims for the first time as part of her
January 2005 appeal.
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination is AFFIRMED.
Partial Dismissal
In a partial dismissal dated September 19, 2003, the agency dismissed
claims (5) and (6) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim. Regarding claim (5), complainant claimed that beginning
January 2002, she was subjected to a hostile work environment for
reporting ethic violations to the State Personnel Officer. We find that
this claim because it does not concern a term, condition, or privilege of
employment over which the Commission will exercise judgment, but rather
concerns claims within the Office of Special Counsel. Complainant is
not alleging discrimination on a basis within the purview of the EEOC
Regulations.
Regarding claim (6), complainant claimed that in June 2003, when
her daughter became an agency volunteer, the AFM decided not to pay
volunteers. We find that complainant failed to specify any personal
loss or harm that she suffered with respect to a term, condition or
privilege of employment as a result of the alleged incident.
The agency's dismissal of claims (5) and (6) was proper and is AFFIRMED.
Amended claims
In a partial dismissal dated September 19, 2003, the agency determined
that it would not accept complainant's two amended claims concerning the
September 2003 and the June 2003 incidents because they were related to
claims (5) and (6) which were not accepted for investigation. After a
careful review of the record, we find that the agency properly determined
not to accept complainant's two amended claims concerning the September
2003 and the June 2003 incidents because they were related to claims
(5) and (6) which were not accepted for investigation.
Accordingly, the agency properly exercised its discretion in not amending
complainant's complaint to include the September 2003 and the June
2003 incidents.
However, in the September 19, 2003 partial dismissal, the agency accepted
for investigation the amended claim that during a September 9, 2003
mediation, an agency official purportedly informed complainant that he
would never be working in Human Resources again. This claim was not
expressly addressed by the AJ in his decision. However, the Commission
determines that it does not state a claim, as it does not address a
personal loss or harm regarding a term, condition, or privilege of
complainant's employment. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The agency's dismissal of
the amended claim regarding the September 9, 2003 incident was proper
and is AFFIRMED.
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
July 7, 2005
__________________
Date