01a60100
04-05-2006
Carolyn Williams, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Carolyn Williams v. Department of Energy
01A60100
April 5, 2006
.
Carolyn Williams,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A60100
Agency No. 01(67)HQ/EIA & 02(31)HQ/EIA
Hearing No. 100-2002-07834X
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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 order.
The record reveals that complainant, a GS-8 Secretary at the agency's
Germantown, Maryland facility, filed two formal EEO complaints,
alleging that the agency discriminated against her on the bases of race
(African-American), sex (female) age (55), and in reprisal for prior
EEO activity when:
(1) while she was on detail, she performed the duties of a GS-11,
but was paid at the GS-9 grade level;
she received a lower performance appraisal than she deserved;
she was threatened by her second-level supervisor (S2) when he stated
that her federal career would be affected by her EEO activity;
she was threatened and verbally intimidated at meetings with her
supervisor (S1) (Black, female, prior EEO activity unknown);
she received unnecessary and arbitrary assignments so that she would
fail to meet her performance deadlines;
management exhibited a harassing behavior toward her such that she was
forced to leave the building and was placed on involuntary leave for
six months;
she was placed on a performance improvement plan, denied training and
made to sit in an open area;
management changed her assigned telephone number and voice mail;
management disconnected her computer;
management downgraded her security clearance;
management informed her that she was occupying a temporary position
and that she would be performing different job duties;
management packed 12 boxes of her office items and placed them in an
open area; and
management made harassing and intimidating statements to her and allowed
her insufficient time to read a 16-page document.
At the conclusion of the investigation, complainant was provided 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 the following:
Complainant had previously worked at the agency's Defense Programs (DP)
as a Program Specialist, GS-11. As a result of a reduction-in-force
(RIF),<1> complainant was downgraded to a GS-8 secretary position, but
eventually arranged a detail to the EIA's Office of Resource Management
(ORM) as a GS-9 with unclassified duties. At the time she started her
detail in ORM, in approximately January 1999, complainant informed her new
supervisor (S1) that she had filed previous complaints of discrimination
in her former position. S1 responded that it did not matter because
ORM needed the help.
In October 1999, S1 lowered complainant's performance score from
"Outstanding" to "Highly Effective" due to complainant's DP supervisor's
(SS) recommendation.<2> In February 2000, S1 informed complainant that
her performance was deteriorating and S1 expressed a reluctance to S2
about making complainant a permanent ORM staff member. Nevertheless,
S1 reassigned complainant to a Program Training Specialist, GS-9 position
effective March 2000, principally because ORM needed the help. In June
2000, complainant complained to S1 and S2 that she should have been
reassigned to the GS-11 grade, rather than the GS-9 grade. However the
agency's Personnel Office concluded that complainant was not qualified
for the GS-11 Training Specialist position because she was a Program
Specialist before the RIF. In addition, the AJ noted that complainant
failed to establish that she was performing the duties of a Training
Specialist during the relevant time.
S1 implemented and prescribed the manner in which "dialogue process
sheets" would be submitted by team members, including complainant.
Complainant initially complied, but later voiced disagreement with the
manner in which the sheets were submitted. S1 and complainant met on
July 25, 2000, to discuss their disagreement and to discuss complainant's
Individual Development Plan. The discussion led to an argument and
complainant reported S1 to security, alleging that S1 yelled at her
and subjected her to workplace violence. In addition, while meetings
between complainant and S1 were often contentious and argumentative,
the AJ did not find any discriminatory or retaliatory motivation behind
such arguments.
The AJ also found that on April 26, 2001, complainant called the
police regarding a confrontation with S1 and S2. Following this
incident, complainant left work and did not return until November 2001.
Upon returning to work on December 5, 2001, complainant was placed on a
performance improvement plan since management felt that she was failing
one of her critical elements prior to her extended leave.
With respect to training, management explained that it denied some
training requests because they did not consider such training relevant
to complainant's job duties. The AJ found insufficient evidence of
pretext on this issue.
The AJ also concluded that the record supports the finding that after
complainant left on extended leave, an office restructuring occurred.
As a result another employee was assigned complainant's office.
Consequently, complainant's computer and telephone numbers had been
disconnected and her office items had been boxed and placed in her new
office. The AJ concluded that complainant failed to present sufficient
evidence to establish a hostile work environment or that the agency's
conduct was motivated by discriminatory or retaliatory animus.
However, the AJ concluded that S2 retaliated against complainant on one
occasion, when he told her that "her complaints would be dismissed, and
if she wanted to get ahead, doing this would only make it worse for her."
The AJ found this retaliatory comment isolated and that it failed to
have a chilling effect on complainant's use of the EEO process.<3>
Complainant's appeal restates facts and arguments previously raised.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We discern no
basis to disturb the AJ's decision. 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 order.
ORDER (C0900)
The agency is ordered to take the following remedial action within Thirty
(30) calendar days from the date this decision becomes final<4>:
The agency shall consider taking appropriate disciplinary action
against S2. The Commission does not consider training to be disciplinary
action. The agency shall report its decision to the compliance officer.
If the agency decides to take disciplinary action, it shall identify
the action taken. If the agency decides not to take disciplinary
action, it shall set forth the reason(s) for its decision not to
impose discipline. If S2 has left the agency's employ, the agency
shall furnish documentation of his departure date.
The agency shall require S2 to undergo 8 hours of training in the
requirements of Title VII, with emphasis on the prohibition against
retaliation; and
The agency shall post a notice of discrimination as set forth below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Washington, D.C. facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
April 5, 2006
__________________
Date
1This RIF is not at issue herein.
2 The AJ did not find any evidence of discriminatory intent with respect
to the lowering of complainant's performance appraisal and found it
reasonable for two supervisors to have slightly different views.
3 The parties do not dispute this portion of the AJ's decision.
4 Complainant does not dispute the remedial award.