0120110905
11-21-2012
Clare Harrigan, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Clare Harrigan,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120110905
Agency Nos. HUD-00090-2007, HUD-00065-2010
DECISION
Complainant timely appealed two Final Agency Decisions (FADs) concerning her equal employment opportunity (EEO) complaints 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 Commission accepts the appeals pursuant to 29 C.F.R. � 1614.405(a). The Commission will exercise its discretion, pursuant to 29 C.F.R. � 1614.606, to consolidate and address Complainant's appeals in this decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Attorney, GS-15, at the Agency's Office of Litigation (OOL) in Washington, D.C. In July 2005, the Associate General Counsel (GC) (female) became Complainant's supervisor. Complainant felt that Associate GC and other management personnel treated female employees less favorably than male employees. Complainant felt that she and other female employees were subjected to discrimination based on their sex.
On April 26, 2007, Complainant contacted an EEO Counselor and filed an amended EEO Complaint on October 18, 2007,1 alleging that the Agency subjected her to hostile work environment harassment and discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. The Agency's FAD and Report of Investigation (ROI) addressed the following claims:
1. On April 17, 2007, the GC was advised that the work of female attorneys in the OOL was arbitrarily scrutinized and arbitrarily criticized, whereas the work of the male attorney's in the office was not, but the GC failed to intervene.
2. From at least January 2007 through October 2007 the Associate GC for Litigation and Freedom of Information Act (FOIA) and the Assistant GC for Insured Housing referred to Complainant and two other employees as "the cabal."2
3. The Associate GC sought and achieved the removal of an OOL employee from his management position because he refused to cooperate in the Associate GC's campaign of discrimination against female employees, thereby creating and perpetuating a hostile work environment.
4. From January 2007 through May 2007, the Associate GC stated she would authorize a detail or transfer for Complainant to another office within the Agency, but refused to do so, and the Associate GC sanctioned Complainant for contrived violations of non-existent or ambiguous directives.
5. The Associate GC and the Assistant GC directed that, if and when a transfer was authorized, Complainant would be required to complete an onerous list of tasks not required of other OOL employees.
6. From February 2007 through May 2007 the Associate GC took the following threatening actions:
a. Repeatedly stalked up and down the hall in front of Complainant's office for no apparent reason;
b. Repeatedly sat alone in the offices beside and across from Complainant's office for no apparent reason;
c. Repeatedly listened to Complainant's conversations both in person and on the phone for no apparent reason;
d. Went through the file cabinets in Complainant's office for no apparent reason;
e. Accused Complainant of having unlawful access to information; and
f. Questioned Complainant's friends, coworkers, clients, co-counsel and colleagues about her mental health, whether she was experiencing stressful situations outside of work, and whether she should be referred to Employee Assistance for counseling.
7. The Associate GC and the Assistant GC incrementally undermined Complainant's ability, over a period of time, to be an effective advocate for the Agency by:
a. Characterizing her zealous advocacy as negative;
b. Refusing to allow her to advise her clients about an important decision in a case that would allow the Agency to seek reimbursement of over one million dollars in attorney's fees;
c. Refusing to allow her to advance a strategy in a case that was approved by her housing clients and served the expressly-stated interest of the Secretary;
d. Including arguments in briefs that undercut important precedent established in her cases; and
e. Characterizing her to clients that she had a difficult personality in order to damage her professional reputation and minimize any success in her cases.
8. The Associate GC, Assistant GC and others escalated the fee to be assessed for the processing of a FOIA request Complainant submitted, thereby retaliating against her and creating and perpetuating a hostile work environment.
9. The GC and others authorized the Associate GC to change Agency policy regarding the identification and preservation of electronically stored and non-electronically stored information that may be relevant to the future litigation of EEO complaints to undermine Complainant's ability to litigate her EEO claims.
10. The Associate GC and the Assistant GC promised to promote two females, encouraging them to take on additional responsibilities until the promotions came through and then awarding the positions to male employees.
11. The GC made it clear that challenges to discriminatory adverse employment actions taken by the Associate GC and the Assistant GC would not be favorably ruled upon, but would be decided by an individual with a close relationship to the Associate GC.
12. On April 17, 2007, the GC agreed to attempt to prevent the Associate GC and Assistant GC from sanctioning Complainant for alleged work deficiencies, but a few days later, told OOL employees that he would not assist her.
13. The GC refused to prevent retaliatory treatment of female employees in the OOL, in that when an employee informed the GC of retaliation by the Associate GC and the Assistant GC, the employee was told to work out her problems with her chain of command (the Associate GC and the Assistant GC).
14. Beginning in March 2007, the Deputy General Counsel for Operations counseled the GC regarding how to take and defend adverse employment actions against Complainant.
15. The Associate GC and the Assistant GC served Complainant with an official sanction for contrived violations of non-existent and ambiguous directives.
16. In July 2007, the Associate GC and the Assistant GC retaliated against Complainant through a series of threatened and actual adverse employment actions taken against a female co-worker who was perceived to be supportive of Complainant's efforts to stop discrimination;
17. In July 2007, the Associate GC and the Assistant GC retaliated against Complainant through a series of threatened and actual adverse employment actions taken against the Administrative Assistant for the OOL, who was perceived to be supportive of Complainant's efforts to stop discrimination;
18. On July 26, 2007, the Associate GC and the Assistant GC issued Complainant her first negative performance appraisal after 15 years of consistently outstanding appraisals.
On March 8, 2010, Complainant contacted an EEO Counselor and filed an additional EEO complaint on June 27, 2010.3 Therein, Complainant alleged that the Agency subjected her to discrimination based on reprisal for prior protected EEO activity under Title VII when:
19. The Agency continued to refuse to respond to Complainant's August 1, 2007, FOIA request.
20. Complainant has not received a response to her October 23, 2008, FOIA request.
21. Since 2007, management has created and perpetuated a hostile work environment in the OOL by authorizing and encouraging a different and less favorable system for processing FOIA requests filed by the Complainant and a female coworker.
22. From August 2007, until they left the Agency, management created a hostile work environment in the OOL by establishing and implementing a different and less favorable system for processing FOIA requests filed by Complainant and a female coworker.
23. The Agency has not responded to Complainant's September 30, 2008, request.
At the conclusion of the investigation with respect to Agency No. HUD-00090-2007, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time-frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency also issued a decision, dismissing Agency No. HUD-00065-2010 pursuant to 29 C.F.R. � 1614.107 (a)(1) and (2).
Final Agency Decision No. HUD-00090-2007
With regard to Complainant's amended October 18, 2007, complaint, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim 8, the Agency noted that the FOIA fees were escalated in error and Complainant was charged a reduced rate. Regarding claim 18, the Agency noted that another female Senior Trial Attorney received a 2007 appraisal rating of Outstanding.4 The Agency found that management's actions were not based on any discriminatory motives. The Agency found that Complainant failed to show by a preponderance of the evidence that she was subjected to discrimination and hostile work environment harassment based on sex and reprisal.
Final Agency Decision No. HUD-00065-2010
The Agency also dismissed Agency No. HUD-00065-2010 pursuant to 29 C.F.R. � 1614.107 (a)(1) and (2). The Agency noted that Complainant was raising claims there were already pending. The Agency also noted that Complainant received the right to file her formal complaint on June 11, 2010, but did not file her complaint until June 18, 2010. The Agency noted that Complainant's formal complaint was filed outside the 15-day time limit pursuant to 29 C.F.R. � 1614.106.
CONTENTIONS ON APPEAL
On appeal, Complainant, in pertinent part, contends that the Agency's ROI with respect No. HUD-00090-2007 was inadequate. Complainant contends that the Associate GC was allowed to replace her affidavits after the investigation was completed. Complainant contends that the Associate GC provided false information in the investigation. Complainant contends that many Agency employees refused to respond to requests for affidavits. Complainant contends that the only other male employee comparable to her did not respond to requests for affidavit testimony. Complainant contends that affidavits from the Assistant GC were removed from the ROI. Complainant contends that the ROI does not contain any records from the Agency's FOIA office.
Complainant also contends that the Agency's FAD with respect to No. HUD-00090-2007 was inadequate. Complainant contends that the Agency's FAD improperly characterized her claims of discrimination and did not provide the required finding on the merits. Complainant contends that the Agency's FAD, among other things, failed to provide an analysis for her hostile work environment and reprisal claims. Complainant contends that the FAD improperly stated that management articulated legitimate, nondiscriminatory reasons for its actions. Complainant further contends that the Agency improperly dismissed Agency No. HUD-00065-2010.
Complainant contends that management received litigation hold letters, but failed to provide instruction to staff to preserve evidence relevant to her EEO complaints. Complainant also contends that the Agency has failed to adequately respond to her FOIA requests. Complainant contends that the Associate GC has unjustly terminated or forced four other female employees over the age of 40 to leave the OOL since 2005.5 Complainant contends that the Associate GC and Assistant GC said that she was incompetent and her work was unsatisfactory. Complainant contends that the Associate GC and Assistant GC falsely cited her as insubordinate for certain cases that she worked on. Complainant contends that the Associate GC created more work for her by causing her to complete lengthy and complex legal filings in a short period of time. Complainant contends that on April 9, 2007, the Associate General Counsel offered her a position doing enforcement work, but the Associate GC said she could not leave the OOL until another lawyer could be hired to replace her. Complainant contends that the Associate GC had the intention of not letting her transfer to another position within the OGC. Complainant contends that the Associate GC blocked a transfer for another female employee. Complainant contends that on April 25, 2007, she was unjustly issued a letter of reprimand.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
Agency No. HUD-00065-2010
With respect to claims 19-23, raised in Complainant's June 27, 2010, complaint, we note that the Commission has held that it does not have jurisdiction over the processing of FOIA requests. Instead, persons having a dispute regarding such requests should bring any appeals about the processing of his or her FOIA requests under the appropriate FOIA regulations. Gaines v. Dep't of the Navy, EEOC Request No. 05970386 (June 13, 1997). In the instant case, therefore. Complainant's allegations that the Agency improperly handled his FOIA requests fails to state a claim within the purview of the EEOC regulations at 29 C.F.R. � 1614. We also note FOIA requests are not classified as participation in EEO activity or opposition to discrimination. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.B-C (May 20, 1998). Therefore, albeit for different reasons, we find that the Agency properly dismissed Complainant's June 27, 2010, EEO complaint.
Agency No. HUD-00090-2007
Upon review of the record, the Commission finds that the record is insufficient to allow a determination of the merits of Complainant's complaint with regard to Agency No. HUD-00090-2007. Our regulations and EEO-MD-110 require agencies to develop a complete and factual record. See 29 C.F.R. � 1614.108(b); EEO-MD-110, Chap. 6.
A review of record reflects that the Agency's FAD and investigation failed to address all of Complainant's claims. We note that Complainant's amended formal complaint dated October 18, 2007, included 55 claims of discrimination, but the Agency's FAD and investigation only addressed 18 claims. Report of Investigation (ROI), at 65-76. Within these claims, Complainant contends that retaliatory actions were taken against two female employees, "Terri" and "Pinkey" who were supportive of her claims of discrimination. Id. at 74-75. We note that the investigator failed to ask "Terri" in her affidavit any questions about any discrimination she may be experiencing for supporting Complainant's discrimination claims. Id. at 584-588. We further note that the investigator indicated that she unsuccessfully made multiple attempts to contact "Pinkey" to provide testimony regarding any adverse actions taken against her for supporting Complainant's claims of discrimination. Id. at 51.
We also note that a retired male employee testified that he felt he was removed from his position for being supportive of Complainant. Id. at 21-22. The retired male employee further testified that the Associate GC placed a tremendous amount of stress on another female employee in an attempt to make the employee leave her position or accept a downgrade. Id. at 30. The retired male employee testified that this female employee retired in November 2005. Id. We note that the EEO investigator did not take or attempt to take the affidavit of this retired female employee, indentified as "Shari."
CONCLUSION
Based upon the foregoing, we AFFIRM the Agency's final decision dismissing Complainant's complaint with respect No. HUD-00065-2010. We VACATE the Agency's finding of no discrimination with regard to No. HUD-00090-2007, and REMAND this matter for a supplemental investigation in accordance with the following Order.
ORDER
The Agency is ORDERED to conduct a supplemental investigation, which shall include, but is not limited to, the following actions:
1. The Agency shall schedule a meeting between Complainant and an EEO Counselor. The meeting shall provide Complainant with the opportunity to clarify the claims of her October 18, 2007, amended complaint.
2. The Agency shall ensure that the investigator obtain any relevant affidavits or records not inconsistent with this opinion, which may be relevant in determining the merits of Complainant's claims.
3. The Agency shall afford Complainant the opportunity to introduce any new evidence into the record.
4. The Agency shall ensure that the EEO investigator completes a supplemental investigation within one-hundred and twenty (120) calendar days from the date this decision becomes final. Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental investigation. Thereafter, the Agency shall provide Complainant notice of her right to request a hearing before an EEOC Administrative Judge. If Complainant does not request a hearing within thirty (30) calendar days of her receipt of the supplemental investigative report, the Agency shall take final action consistent with 29 C.F.R. � 1614.110(b).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 (T0610)
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 (Z0610)
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
November 21, 2012
Date
1 The October 18, 2007, amended complaint pertains to Agency No. HUD-00090-2007.
2 "Cabal" is defined as a conspiratorial group of plotters or intriguers, or a secret scheme or plot. American Heritage Dictionary of the English Language (4th Ed. 2000).
3 The June 27, 2010, complaint pertains to Agency No. HUD-00065-2010.
4 The Agency specifically addressed only claims 8 and 18 in the legal analysis portion of its FAD. The Agency also noted that it articulated legitimate, nondiscriminatory reasons for its actions with regard to claims 1-18, but did not list what those reasons were in its analysis. In any event, the Agency applied the wrong legal analysis to most of Complainant's claims. The Agency erroneously treated the claims as disparate treatment rather than claims of harassment, as discussed infra.
5 Complainant alleged age as basis for discrimination for the first time on appeal. Absent a compelling reason, the Commission has ruled that a complainant may not raise a new basis of discrimination for the first time on appeal. Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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