01a50414
04-14-2005
Brenda C. McDaniel, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Brenda C. McDaniel v. Department of Agriculture
01A50414
April 14, 2005
.
Brenda C. McDaniel,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A50414
Agency No. 020714
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Administrative Specialist at the agency's Kosciusko, Mississippi
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on August 5, 2002, alleging that she was discriminated
against and harassed on the bases of sex (female), disability, and in
reprisal for prior EEO activity (arising under Title VII) when:
Complainant's supervisor included a derogatory remark on her performance
appraisal dated January 14, 2002, which she became aware of on June
28, 2002;
On June 2, 2002, complainant's supervisor instructed her to not
communicate with the National Office regarding any policies and
procedures without prior approval; and
On June 2, 2002, complainant's supervisor denied her attendance at
program training meetings and Director Division meetings.<1>
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision. In its FAD, the agency
found no discrimination for all of complainant's claims. On appeal,
complainant restates arguments previously made in her investigative
affidavit and complaint. The agency requests that we affirm its FAD.
In an investigative affidavit, complainant contended that after reviewing
her performance appraisal, she noticed several derogatory remarks about
her performance in the comments section. Specifically, complainant
objected to her former supervisor's statements that complainant should
concentrate more on taking command of assigned job duties and due to
extensive absences, it was difficult to assess complainant's performance.
�To sum it up, while on the job, employee's performance was marginally
acceptable,� the supervisor concluded.
Complainant's former supervisor acknowledged that he entered the
comments about complainant's performance on the appraisal. �I could
not remove the comments from the appraisal because the system would
not allow me to access it as she was now under the supervision of [a
different supervisor], and he had access to the appraisal file in the
ICAMS system,� he asserted.
Regarding claim 2, complainant claimed that her supervisor instructed
her to not communicate with the National Office regarding any policies
and procedures without prior approval. Complainant alleged that two male
State Office employees made calls to the National Office. The supervisor
responded that the agency's unwritten policy is to have personnel in
the field get authorization from the State Office before contacting the
National Office. The supervisor stated that after consulting with the
Office of Personnel Management, he was advised to instruct complainant
that while she could make calls to the National Office on a limited basis,
she should keep her supervisor informed of the calls.
Asked during the investigation about complainant's claim that two
male State Office employees are allowed to call the National Office,
the supervisor responded that he did not supervise those employees.
�If [the two male State Office employees] call the National Office, it
would be concerning individual case issues, whereas Ms. McDaniel deals
with policy and procedure, decisions on which could affect many employees.
To my knowledge, [the two male employees] do not call on policy and
procedure but instead to obtain guidance on specific individual cases,�
he explained. He further stated that complainant can now call the
National Office as long as she informs him of her communications.
Complainant's former supervisor stated that he advised complainant's
current supervisor that complainant should not directly contact the
National Office about travel regulations and policy because these
matters were developed and administered out of state offices. �I advised
[complainant's current supervisor] that if [complainant] had questions
arise concerning the policy that I preferred, these questions be routed
to the State Office so we would all be in the loop and any guidance to
the field come from the State Office,� he stated.
Complainant's current supervisor stated that after complainant
informed him about the comments, he sent an electronic mail message
to complainant's former supervisor on June 25, 2002 about removing
the comments. He stated that the former supervisor agreed to have
the comments removed, but contended that he did not have access to the
system to remove them since he was no longer complainant's supervisor.
Complainant's current supervisor maintained that he has not removed the
comments because higher level management has not yet authorized him to
do so.
Complainant further contended that on December 13, 2001, she was notified
that her name was no longer included on the list of attendees for the
State Office District Directors meetings. She stated that her supervisor
did not allow her to attend the meetings until October 2002, after she
talked to an EEO official. Complainant asserted that her supervisor only
allows her to attend portions of the meetings, not the entire meetings.
Complainant's supervisor responded that complainant attended meetings in
the past as a presenter because of her former position, but since becoming
an assistant to the District Directors, no longer needed to attend the
meetings. He stated that she was allowed to attend the monthly District
Director meetings, which cover five or six program areas. He asserted
that complainant's responsibilities lie solely in the administrative area,
which usually occupies only one hour of the meeting. �By email dated
July 1, 2002, I advised [complainant] that I did not believe that full
day attendance, as a rule, would be an efficient use of time,� he stated.
A claim of disparate treatment is examined under the three-part 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 case 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).
As an initial matter, we assume arguendo that complainant is a qualified
individual with a disability entitled to coverage under the Rehabilitation
Act. Upon review of each of complainant's claims, we find that the agency
presented legitimate, non-discriminatory reasons for its actions that
were not persuasively rebutted by complainant as pretext for unlawful
discrimination. In so finding, we particularly note that complainant
replied to the agency's response to claim 2 by contending that two male
State Office employees were allowed to directly call the National Office.
However, the record reveals that these comparatives are not supervised
by complainant's supervisor and therefore not similarly situated to
complainant. We further find that complainant's hostile work environment
claim likewise fails because complainant failed to present any persuasive
evidence that any of the alleged actions occurred because of her sex,
disability or in reprisal for prior EEO activity.
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 FAD.
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:
______________________________ _April 14, 2005____
Carlton M. Hadden, Director Date
Office of Federal Operations
1We note that in the instant complaint, complainant also alleged that
the agency breached the terms of a settlement agreement. Complainant's
breach claims were processed separately in accordance with 29 C.F.R. �
1614.504.