01985136
08-25-2000
Arthuretta H. Martin, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Arthuretta H. Martin v. Department of the Treasury
01985136
August 25, 2000
.
Arthuretta H. Martin,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01985136
Agency No. TD 96-1104
Hearing No. 100-97-7259X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et. seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405). Complainant alleges she was discriminated against
on the bases of race (African American), religion (Christian),gender
(female), and reprisal when:
(1) she was given an excessively heavy workload;
(2) approval was delayed for holiday leave;
(3) she was limited in her use of �cc:mail�;
(4) her supervisor �loud-mouthed� her reasons for taking leave;
(5) she was given an assignment to write a conflict of interest point
paper;
(6) she was given an assignment to extend the Mitre contract without
using proper procedures;
(7) her work was unfairly reassigned;
(8) she was not given recognition for her participation and contribution
in the STAWRS project;
(9) she received hate mail and a Star of David on December 12, 1995;
For the reasons outlined below, the Commission affirms the agency's
final decision.
The record reveals that the complainant, a GS-13 Contracting Officer
at the agency's Office of Automation Support Branch, filed a formal EEO
complaint with the agency on November 7, 1995, alleging that the agency
had discriminated against her as referenced above. At the conclusion of
the investigation, the complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The Administrative Judge's Decision
The AJ concluded that the complainant failed to establish a prima facie
case of race, sex or religious discrimination. Specifically, the AJ found
that the complainant failed to establish an inference of discrimination
because she failed to give comparative evidence that others not in her
protected class were treated differently under similar circumstances.
As an example of this, the AJ found that even though the complainant cited
her workload as being heavier than that of anyone else in the office,
the testimony established that everyone was overworked and had equally
heavy workloads. Regarding issues 2 through 7 and 9, the AJ concluded
that the complainant failed to demonstrate how she was aggrieved by the
agency's action and therefore, she failed to establish a prima facie case.
On the complainant's claim of harassment, the AJ concluded that she failed
to show the terms and conditions of her employment were substantially
altered by the incidents alleged to constitute harassment or that the
conditions were singularly abusive in nature.
Even assuming the complainant had established a prima facie case of
discrimination, the AJ concluded that the agency had articulated
legitimate non-discriminatory reasons for its actions which the
complainant did not rebut. For instance, about claim number 2, the
complainant's supervisor testified that he received the complainant's
leave slip for December leave sometime in July 1995 long before any
other requests. The AJ credited his testimony that he wanted to get
every employees' request in to determine coverage for the office before
he gave approvals. According to the AJ, the complainant did not show
that this was a pretext for discrimination or that the supervisor's
reason was unworthy of belief.
Regarding claim number 6, the complainant's supervisors testified that
the complainant was reassigned from the Mitre contract<2> because
she had requested it and because they wanted a more experienced GS-14
contracting officer to take over a potentially large project. Based on
this, and the complainant's failure to rebut their testimony, the AJ
found that the agency had a legitimate non-discriminatory reason for
taking her off the project.
Finally, the AJ found that the complainant was subjected to religious
harassment when she received an anonymous letter calling her a �bigot�
for singing a Christian song at a holiday party and when she received
a picture of the Star of David. The AJ concluded, however, that the
agency took appropriate actions to express its dissatisfaction with the
anonymous letters and its intention to discipline the person involved.
For that reason, the AJ found no religious discrimination.
Although the AJ specifically accepted retaliation as a basis for the
complaint, she failed to reach a conclusion whether the complainant had
been the subject of retaliation.
The agency's final decision adopted the AJ's recommended in its entirety.
Arguments on Appeal
Complainant made no new contentions on appeal, but reiterated her
dissatisfaction with the agency's processing and investigation of
her case. Her complaints about the agency's unsatisfactory processing
and investigation are detailed in the case file and are mentioned
during her testimony at the hearing. In her appeal statement, the
complainant again stated that the issues were not correctly defined and
were incorrectly re-framed by the AJ. She contends the AJ barred her
from giving proof of the harm she incurred but then unfairly found that
the complainant had not been harmed in her final conclusions. Finally,
the complainant contends the AJ insulted her representative during the
hearing by requiring that he �beg� her to consolidate a later complaint.
To remedy the improprieties she identified, the complainant requests
that the case be remanded for another investigation by an independent
third party and presumably for a rehearing.
In response to the complainant's appeal, the agency echoed the AJ's
conclusions arguing that the complainant had not established a prima
facie case on a number of her issues because she failed to show how
she had been harmed. On the question of the complainant's issues being
incorrectly defined, the agency argued that she was given the opportunity
to object to the agency's statement of her claims after it received her
formal complaint, but she declined to respond.
ANALYSIS AND FINDINGS
A. Complaints Regarding the Processing and Investigation of the Complaint
Normally, written complaints surrounding improper processing
of EEO complaints fail to state a claim under our regulations.
64 Fed. Reg. 37,656 (to be codified at 29 C.F.R.�1614.107(a) (8)).
Here, the complainant raised the issue of improper processing and
investigation in a memorandum to the EEO Director of her agency.
Her issues were addressed at that time and included an invitation for
her to submit more accurate information in the investigative file that
she deemed relevant. The complainant also raised concerns about the
AJ's conduct of the hearing in a letter to the agency and on appeal.
She repeated her concern that her issues had not been correctly defined
but did not propose how they should have been framed.
We reviewed the complainant's concerns in the context of whether they
materially effected the processing of the complaint and conclude that they
did not and that her concerns have been more than adequately addressed.
See EEOC Management Directive 110 (MD 110) Chapt.5-25, (November 9,
1999). The record indicates that the agency addressed the complainant's
concerns in a detailed letter. In it, the agency addressed 8 separate
points raised by the complainant which set forth how she believed her
case was mishandled along with the agency's response.
Moreover, we looked at the specific issues addressed at the hearing
and found that they stated essentially the same claims raised by the
complainant in her written complaint. In addition, we saw no indication
that the agency's processing and investigation had a material effect
on the processing of the case or that the AJ's conduct of the hearing
was improper. In reaching this conclusion, we found no support in the
transcript of the proceedings for the complainant's claim that the AJ
insulted her representative or that she otherwise acted improperly.
Rather, we found that the proceedings were orderly with only a few
exceptions due in part to the complainant's representative's lack
of legal training. On the question of whether there should have
been a consolidation of this case with a later complaint, we found
that the complainant's representative abruptly changed his position
on consolidation after winning the AJ's ruling that there would be
no consolidation. It was at this time that he used the word �beg� in
arguing that the AJ should change her ruling. Thus, the record does
not support the complainant's characterization of the proceedings or
that AJ otherwise acted improperly.
We do take issue with the AJ's position that questions about the
processing of the case were irrelevant to the issues presented at the
hearing. Under our new regulations, such questions do not form the basis
for a separate complaint but they must be explored at the hearing to
determine their effect on the quality of the information produced by the
agency and on the processing of her complaint. See 64 Fed. Reg. 37,644,
37,656, July 12, 1999 (to be codified at 29 C.F.R. �1614.107 (a)(8));
MD 110 at 5-25. Given our finding above, the AJ's failure to inquire
further into the complainant's concerns was harmless error.
B. Legal Analysis
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). Legal conclusions will be reviewed de novo,
meaning that there is no presumption that the previous interpretation
was correct in its application of the law. MD 110 at 9-16.
After a careful review of the record, based on the analysis set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); and
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the Commission finds
that the AJ's factual findings are supported by substantial evidence in
the record and consequently, there is no reason to overturn her decision.
Though we do not entirely agree with the AJ's legal analysis of the
issues, we do agree with her final result. We address herein each of
the complainant's claims.
Complainant's first claim, that she was given an excessively heavy
workload, was not supported by sufficient proof that others not in her
protected group had a lighter workload or that considerations of race,
sex, religion or retaliation were the basis of decisions regarding her
workload. The complainant's immediate supervisor prior to S1, stated that
any unfairness in the distribution of the workload was not due to race,
sex,<3> or religious considerations. Instead, she attributed the uneven
distribution to �political considerations� of the upper level managers
and the lack of adequate personnel. Moreover, the complainant does
not reconcile this claim with claim number 7 regarding discriminatory
reassignment of her work. We find it contradictory for the complainant
to claim discrimination in being assigned too much work at the same time
she claims discrimination in having some projects reassigned.
The complainant's claims numbered 2, 3, 4 and 5, each fail to
state a claim in that they fail to allege a specific harm to a term,
condition or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). In particular, the complainant's claim 2, which alleged
her request for holiday leave was delayed, does not allege that she was
denied leave and does not explain how the delay caused her harm.
Therefore, we agree with the AJ's legal conclusion that the complainant
failed to allege a specific harm and that she did not show she was an
aggrieved individual with respect to this claim.
Complainant's claim 3 concerning her immediate supervisor, S1's,
request that she limit her communications to him by �cc:mail� fails
to establish how the action adversely affected her employment. The
complainant's claim that her supervisor's action was done to limit
documentation of his actions as they related to her EEO claims does
not establish harm to a term, condition or privilege of employment.
S1 stated that he told the complainant to limit her communication in
this manner because he wanted to ensure he was kept directly appraised
of important issues. The complainant did not demonstrate that this was
a pretext for discrimination.
Complainant's claim number 4 concerned the fact that her supervisor
�loud-mouthed her reasons for taking leave� while standing at her work
site. Again, this claim fails to state facts which allege a specific
harm to a term condition or privilege of employment.
Finally, the complainant's claim number 5 described as her supervisor's
requirement that she draft a conflict of interest paper related
to the STAWRS project also fails to allege the manner in which the
complainant was adversely affected. The complainant asserted that
Caucasian employees had not been required to write an opinion paper
which questioned support for a customer's request. Even assuming this
was true, she failed to explain how actually writing the paper resulted
in harm to her employment.
Even if we view claims 2, 3, 4 and 5 collectively, as a claim of
harassment together with complainant's claims as a whole, we are
unpersuaded that they satisfy the standard set forth in the law.
To determine whether the harassment is sufficiently severe to trigger a
violation of Title VII we review the circumstances as a whole, 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, 510 U.S. 17 (1993).
In determining whether the conduct constituted illegal harassment, we
must determine whether it was sufficient to affect 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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Applying these legal standards, we find that the complainant's claim
of harassment does not allege facts which are severe or sufficiently
pervasive enough to state a claim of harassment.
Our review of the complainant's claim number 6 which concerns an
assignment to improperly extend a contract, is limited and does not
include consideration of the complainant's removal as the contract officer
on the contract in question. The complainant's removal was the subject
of a negotiated grievance filed by the complainant and is, therefore,
not subject to our review. 29 C.F.R. �1614. 301(a).
On claim number 6, the AJ concluded that the complainant did not state
a claim because she failed to allege a specific harm to her employment
as a result of the assignment. We too, doubt that the complainant
has alleged sufficient harm because she was not required to sign the
extension documents, and did not receive a disciplinary action for
refusing to carrying out the assignment. The complainant was taken off
of the project but the record reflects that she herself, requested to
be taken off of it because of her objections to S1's request.
Assuming that the complainant stated a legally sufficient claim,
the complainant must establish that other contracting officers not in
her protected group were not required to take assignments they found
legally objectionable in order to show she was treated differently.
Here again, the testimony of S2, complainant's second level supervisor,
established that it sometimes occurred that a contracting officer would
feel uncomfortable with being a signatory to an action they thought
was legally questionable. He explained that like the complainant, the
contracting officer would not be required to sign but their supervisor
would sign in their place. Lastly, the complainant failed to establish
that the supervisor's explanations were a pretext for discrimination.
Complainant's claim number 7 concerned her reassignment from the Mitre
contract and how assignments were given in general. She is only specific
about one particular assignment - namely the Treasury Information Process
Support Service Contract (TIPSS) which she claimed she was not given
because of her race. Again, we are legally barred from addressing
the complainant's claim of �removal� from the Mitre contract as she
raised this issue through the grievance process as we discussed above.
In addition, the complainant's claim of discrimination in not being
assigned to the TIPSS contract does not appear to have merit as she was
given an assignment related to this contract after she was reassigned from
the Mitre contract. Other than TIPSS, the complainant does not elaborate
about other assignments she contends she was excluded from and therefore,
there is insufficient evidence to support her claim of discrimination.
The complainant's claim number 8 concerned her claim that she was not
given recognition for attending a White House ceremony on the STAWRS
project. Specifically, she claimed that a memorandum was circulated which
did not mention her attendance. Also part of this claim was the fact
that the complainant was admonished for not reporting her attendance at
a White House event to her managers prior to the event. We do not agree
with the AJ that the complainant did not state a claim in alleging she did
not receive recognition for her involvement in a high profile project that
was the subject of a White House event. Such recognition is likely to
affect an employee's performance appraisal and advancement on the job.
Nevertheless, the complainant's claim that she was the subject of
disparate treatment is without merit because the agency stated others in
attendance were similarly not mentioned. The complainant did not rebut
this statement or establish that it was a pretext for discrimination.
In addition, the complainant received recognition for her performance
from her supervisors through outstanding performance evaluations.
Therefore, the preponderance of the evidence did not support her claim
that she was treated differently than others in terms of recognition
for her achievements.
The complainant's claim that she was unfairly admonished for not reporting
her attendance at a high level event to her managers does not state a
claim because she does not demonstrate that this constituted concrete
discipline. In fact, the complainant does not claim that she was even
threatened with disciplined. Our regulations provide that an agency
shall dismiss a complaint or a portion of a complaint that " alleges a
proposal to take a personnel action, or other preliminary step to taking
personnel action, is discriminatory." 29 C.F.R. � 1614.107(a)(5).
Therefore, viewing this as somewhat less than a formal disciplinary
action, we conclude that it does not state an actionable claim.
From the vantage point that this claim along with the other facts asserted
by the complainant, constituted a pattern of harassment based on race or
sex, we rely on the AJ's assessment of the testimony and the credibility
of the witnesses. On this particular incident, the AJ credited the
testimony of the agency's manager who characterized the incident as a
mis-communication in the chain of command. The AJ further found that
the complainant did not prove that the agency's explanation was a pretext
for discrimination. On our review of the record, the AJ's findings are
supported by substantial evidence in the record and we therefore sustain
her conclusions.
Finally, the complainant's claim number 9 that she was subjected to
religious discrimination when she was disrespected during her vocal
rendition of a Christian song during a holiday party. She claimed that
S1 and S2 along with two others, laughed and talked while she sang.
She further alleged and proved that she received a copy of a letter
disparaging her song and calling her a �bigot�. She later received
another letter with a Star of David pictured with the words �we will not
forget.� The person responsible for sending the harassing correspondence
was never identified.
Based on the record before us, we will assume that the incidents in
question were perpetrated by a co-worker of the complainant and not
a supervisor. Therefore, our analysis of the agency's liability under
the circumstances will follow from that presumption. See 29 C.F.R. �
1604.11(d) In this case, the evidence supported the AJ's conclusion
that the complainant was subjected to religious harassment but that
management's actions in response were adequate. That is, each employee
in the office was interviewed about the incidents and required to attend
a seminar on diversity and respecting people's differences. The AJ also
credited the agency's testimony that it made clear the person or persons
responsible for sending the offensive and threatening correspondence would
be disciplined. The record did not reflect any subsequent incidents.
In addition, there was no evidence that the agency refused to accommodate
the complainant's celebration of her religion during the holiday party or
refused to allow her to sing. See 29 C.F.R. Part 1605.2(b); TransWorld
Airlines v. Hardison, 432 U.S. 63, 74 (1977). Another employee, who
was the complainant's first supervisor and who had invited her to sing,
testified that she did not believe that Christianity was disfavored
in this office. Therefore, based on our review of the record, there
was substantial evidence to support the AJ's conclusion that while
this incident constituted religious harassment, the employer took the
appropriate steps to address its employees' behavior.
Retaliation
In order to establish a prima facie case of retaliation, the complainant
must show that (1) she took some action to oppose discrimination or
participated in the EEO process; (2) she incurred some adverse personnel
action; (3) there was a causal connection between the protected activity
and the adverse action; (4) her supervisor was aware that she engaged in
protected activity. EEOC Guidance on Investigating, Analyzing Retaliation
Claims Number 915.003, 5/20/98.
We find that with respect to issues 1through 8, the complainant has not
established a prima facie case of retaliation because these incidents
occurred before she sought EEO counseling or filed her discrimination
complaint both of which occurred on November 7, 1995. As a result,
these incidents could not have resulted from retaliation.
With respect to issue number 9, the complainant failed to establish
elements 2 and 3 of the prima facie case. In particular, she failed to
show that her managers' actions in response to the religious harassment
were affected by her having filed an EEO complaint.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 25, 2000
Date
Carlton
M.
Hadden,
Director
Office of Federal Operations
1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The Mitre contract was apparently one of many contracts related to the
overall STAWRS project.
3The complainant's claim that she was treated less favorably because of
her sex is particularly weak in light of her assertions that a female
employee replaced her on the STAWRS project and was allegedly given more
assistance in her work.