0120091086
06-16-2009
Ayanna A. Wiggins, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Ayanna A. Wiggins,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091086
Agency No. ARGORDON07OCT04002
DECISION
On January 6, 2009, complainant filed an appeal from the agency's December
8, 2008 final decision 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Public Relations Coordinator at the agency's Directorate of Morale
Welfare and Recreation facility in Fort Gordon, Georgia. Complainant
filed an EEO complaint on February 7, 2008, and an amendment on April 4,
2008, alleging that she was discriminated against on the bases of race
(African American), color (Black), and reprisal for prior protected EEO
activity under a statue that was unspecified in the record when:
1. On October 2, 2007, complainant was issued a Caution Warning: Decision
Letter; and
2. On December 12, 2007, complainant received a Notice of termination,
effective December 21, 2007, and complainant was removed from the agency
on that date.
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 pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that she was subjected to discrimination as alleged.
Specifically, the agency found that complainant failed to establish prima
facie claims of race and color discrimination in either claim because
she failed to identify otherwise similarly situated comparators who were
outside of her protected bases. The agency further found that complainant
established a prima facie case of reprisal but that the agency articulated
legitimate, nondiscriminatory reasons for its actions and complainant
failed to establish that such reasons were pretext for discrimination.
The agency found that agency officials issued the Caution Warning letter
because complainant missed a number of deadlines for the publication
of FYI Magazine, her primary responsibility. The agency further found
that complainant was terminated because she again missed a publication
deadline and she failed to complete an assigned task.
On appeal, complainant argues that the FAD does not reflect the evidence
contained in the Report of Investigation (ROI) and that her first level
supervisor (RMO1: Caucasian, White) provided false testimony during
the investigation. The agency requests that we affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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).
The agency's December 12, 2007 Notice of Separation notified complainant
that she was being removed for "failure to adhere to the performance
standards of [her] job and disrespect [sic] and discourteous behavior."
See Report of Investigation (ROI), exhibit F-8. The Notice further stated
that on October 2, 2007 complainant had been suspended for a day due to
her "continual failure to work on assigned duties and to follow directives
setting suspense's for task completion." Id. The notice stated that
complainant signed a statement saying she would adhere to the performance
and conduct expectations and that "I understand that any violation or
failure to meet any of these expectations during the period of October
2, 2007, to October 1, 2008, will result in immediate termination of my
employment." Id. The notice further stated that complainant next failed
to complete a project on December 3, 2007 and left the office that day
without completing the project, thus causing RMO1 to have to come in on
her scheduled day off to complete the project. See id. When RMO1 spoke
with complainant the following day, according to the notice, complainant
"became very argumentative and raised [her] voice." Id.
The agency having articulated a reason for its actions, complainant
to ultimately prevail, 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).
Regarding the October 2 warning, complainant argues that she was not the
only person responsible for the October issue of FYI Magazine being late
getting to the printers. See ROI, Transcript of Fact Finding Conference
(Transcript), pp. 10-11. Complainant stated that she worked as part
of a team that included a Graphic Designer/Illustrator1 (CW1: White,
Caucasian,) and that others were also responsible for the magazine being
late. Id. Complainant said that the reason she felt the discipline
was discriminatory was:
Because I felt that--I felt it was very extreme. It was basically--the
way the letter is written is basically they can get rid of you at any
point within the next--within the next twelve months. And I just felt
like, number one, why am I-why am I the only person--why am I getting this
and why am I the only person, and especially based on my performance?
If I had not been a good employee, you know, working hard, doing good
things then perhaps it may have been warranted, but that was not the case.
Id.
However, complainant also stated that she did not know whether she was
the only one disciplined or whether others, including CW1, received
similar discipline. Id., p. 12. Complainant also sated that RMO1 told
her in earlier conversations that complainant's third level supervisor
(RMO2: White, Caucasian) "didn't like Black people." Id., p. 43.
In her Formal Complaint, complainant included additional reasons for
the October issue being late getting to the printers, including the
fact that one of the magazine staff had been out sick and then resigned,
another member of the staff "had not been doing well and was scheduled for
surgery," complainant's husband was in Iraq and complainant was having
a medical biopsy screening. See Formal Complaint, p. 8. In addition,
complainant said that RMO1 requested that additional pictures be
added to the magazine after the deadline and that RMO1 was fully aware
that the deadline would not be met. See id. and Transcript, p. 17.
Complainant contends that the magazine was late getting to the printers
"probably 50 percent of the time" Transcript, p. 25.
Regarding the Notice of Separation, complainant indicated that
responsibility for the assigned task (the Task) that complainant failed
to meet was ambiguous. A few weeks before receiving the notice of
termination, complainant said, another management official (RMO3: race,
color unknown) had sent complainant and CW1 an email requesting a special
project to be completed by November 30, 2007. See Formal Complaint,
p. 9. Because the request was clearly a graphics request and complainant
was not a graphic designer or an illustrator, and because RMO3 had
specifically requested that CW1 or another graphic designer obtain the
requested materials, complainant said she was not sure who the request
was for, but that RMO1 said the request was directed at complainant.
See id. Over the course of a week and a half, complainant and RMO1
exchanged various emails wherein complainant said she tried to explain
to RMO1 that she did not have access to the materials requested by
RMO3 but that a graphic designer would have access to such materials.
See id. Complainant said that RMO1 eventually agreed but was unwilling
to have CW1 work on the request because he was busy working on the
FYI Magazine and she did not want to pull him from that duty, and
the other Graphic Designer in the office was "out sick indefinitely."
See id. Complainant said that RMO1 decided to email her own supervisor,
complainant's second-level supervisor (RMO4: Caucasian, White) to find
out what to do, saying "You know what? I'm going to send [RMO4] an
email and put the ball in her court. I'll let her decide." Id.
Complainant said that she heard nothing more until the day before the
Task was due when RMO3 came into her office asking about the requested
materials. See Formal Complaint, p. 9. Complainant said that she told
RMO3 that it was not clear who was supposed to be working on her request
and that RMO1 had asked RMO4 to decide whether CW1 should be pulled off
his work on the FYI Magazine to complete RMO3's requested Task. See id.
Complainant further notified RMO3 that RMO1 was out of the office and
would return the following day, which was the day the Task was due.
See id. Complainant said that she left the office early that day due
to an emergency and when she returned the next day she was met by RMO1
who berated her saying that she and CW1 had had to stay in the office
until 10 pm the day before to complete RMO3's assigned Task. See id.
Complainant maintains that RMO1 further stated that complainant could have
done the Task herself because all it required was for complainant to look
through old copies of FYI Magazine. See id. Complainant maintains that
she told RMO1 that according to RMO3's original request in her email,
as well as her comments when she came into complainant's office the day
before, the Task was more complicated than RMO1 was claiming and that if
it had been as simple as RMO1 claimed "I would have simply turned around
and pulled out old FYI magazines from my file cabinet." Id., p. 10.
Regarding the October 2 Warning, complainant has provided reasons
explaining why she was not solely at fault for the October issue
of FYI Magazine being late getting to the printer, but she has not
provided evidence to show, by a preponderance of the evidence, that the
agency's reason for the warning she received is a pretext for unlawful
discrimination. While complainant has provided contradictory statements
regarding whether others received similar warnings (". . . there was [sic]
no other African Americans in the office and to my understanding no one
else received [a warning letter]." Transcript, p. 19, ". . . everybody
was written up, is what I was told." Transcript, p. 11.), even assuming
that others received no warning letter, the fact remains that complainant
has not shown that she was similarly situated with others who worked
on the magazine. The record shows that complainant was employed as a
Public Relations Coordinator and she stated that "I edited the magazine."
Id. When asked who was responsible for getting the magazine out on time,
the only other people complainant identified besides herself were CW1
who was an Illustrator, see id., p. 13, and RMO1, who was complainant's
supervisor. See id, p. 16. Since neither CW1 nor RMO1 were Public
Relations Coordinators and editors of the magazine, neither of them is
similarly situated with complainant.
Regarding the Notice of Separation, complainant maintains that there was
some ambiguity regarding who was responsible for completing the assigned
Task, but she has not shown that the agency's reason for the separation
is a pretext for unlawful discrimination. Complainant admits that she
received the initial email from RMO3 about the Task, RMO1 told her that
the Task was hers to complete, complainant was on notice from the Warning
letter that any failure to meet expectations could result in immediate
termination, and yet complainant left the office early the day before
the Task was due without completing the Task.
Complainant maintains that RMO1 lied and fabricated evidence.
Specifically, complainant maintains that in an exchange of emails between
herself and RMO1, RMO1 did not acknowledge that the assigned Task required
CW1's help or input, but that RMO1subsequently altered the electronic
record by adding a fake email purporting to give complainant permission
to use CW1 to help with the Task. Complainant has provided copies of
both email trails, both of them identical in every way except that one
has a final email from RMO1 to complainant saying ""if you need [CW1]
to help then okay" and another with a different final email from RMO1 to
complainant making no mention of CW1. Complainant argues that the first
copy is a fake provided by RMO1 to the investigator, and the second is
the true email record. See Complainant's Appeal Brief. While the two
email trails indicate that somebody sought to fabricate evidence, it
is impossible to know which is the true version and which is the fake.
Assuming for the sake of argument, however, that RMO1 did fabricate the
final email to make it seem as though she had given complainant permission
to use CW1 for the Task, RMO1's testimony to the investigator was that
the Task could be completed without CW1's help. See Transcript, p. 155.
Since RMO1's position during the investigation was that complainant
was capable of completing the Task without CW1's help, it is unclear
why she would fabricate evidence that showed her granting complainant
authority to use CW1 for the Task. In fact, it has consistently been
RMO1's position that complainant could have completed the Task herself,
while it has been complainant's position that CW1's help was required.
On appeal, complainant does not explain why RMO1 would fabricate evidence
in such a way that it would now support, rather than weaken, complainant's
claim that the Task needed CW1's help.
Finally, with regard to RMO2, he denied stating that he did not like Black
people, see Transcript, p. 215, and RMO1 denied that RMO2 ever told her
he did not like Black people. See id., p. 136. This was contradicted
by complainant and another coworker (CW2: White, Caucasian). See id.,
p. 60.
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has not met her burden of establishing, by a preponderance
of the evidence, that the agency's articulated reasons for its actions
were pretextual. While the record indicates that RMO1 and complainant
did not get along, complainant has not shown that RMO1 harbored animus
towards complainant based on her protected bases as opposed to other,
non-prohibited reasons. While complainant's treatment may seem somewhat
harsh given the circumstances, complainant has not shown that the agency's
actions were motivated by discrimination. Accordingly, we AFFIRM the
FAD.
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
June 16, 2009
__________________
Date
1 CW1 is identified in the record as an Illustrator and also as a Graphic
Designer.
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0120091086
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091086