0120091002
06-04-2010
Constance L. McGowan, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Constance L. McGowan,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120091002
Agency No. F-06-6075
DECISION
Complainant filed an appeal from the agency's December 22, 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.
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 Signals Collection Analyst at the agency's Engineering Research
facility in Quantico, Virginia. On October 3, 2005, complainant filed an
EEO complaint alleging that she was discriminated against on the basis
of sex (female) and reprisal when she was subjected to harassment that
included the following incidents:
1. From December 9, 2004, to August 31, 2005, complainant was:
(a) denied training, an alternate work schedule, and replacement of "a
computer function,"; (b) counseled about work performance deficiencies;
(c) questioned about leave; and (d) received no guidance regarding a
temporary hardship transfer request;
2. During a meeting with management on August 31, 2005, complainant
was denied a promotion to the GS-12 grade level and subjected to
derogatory comments;
3. On September 5, 2005, complainant's work schedule was changed;
and
4. On September 23 and 29, 2005, complainant's supervisor made
derogatory comments regarding complainant's actions to her coworkers.
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).
In its decision, the agency noted that several of complainant's alleged
incidents of harassment were untimely raised with the agency's EEO office.
Specifically, the agency found that schedule requests, requests for
training, while part of complainant's overall claim of harassment,
were the kind of discrete agency actions that complainant was required
to present for counseling within 45 days of the time she reasonably
suspected discrimination. Accordingly, the agency dismissed these
allegations pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO
Counselor contact.
The agency observed that complainant became eligible for promotion to
the GS-12 grade level on August 21, 2005. Complainant's immediate
supervisor, S1, retired on August 19, 2005 and a new supervisor,
S2, assumed his duties including supervision of complainant's work.
Complainant was not promoted in August 2005 and in October 2005 was
informed by S2 and the Supervisory Special Agent, S3, that her performance
did not warrant a promotion at that time and that her work was deficient
in several areas. Complainant stated to S2 and S3 that she had not been
told her work was deficient before and requested performance standards.
Complainant was given guidelines, performance standards and examples of
her work product used in the evaluation of her work by S2. S2 stated that
compared to other employees in complainant's position, complainant's
productivity, error rate and work performance did not justify a
recommendation to the GS-12 grade level. S2 stated that he based his
decision on his own observation of complainant's work and a review of
computer reports pertaining to complainant's productivity and time.
When complainant's productivity steadily improved over the next several
months, S2 recommended complainant for promotion to the GS-12 level
in June 2006. The agency noted that S3 stated that promotion to the
GS-12 level was not automatic after one year at the GS-11 grade level.
The agency found that while complainant alleged that her promotion was
initially denied because of her sex, the agency found that complainant
failed to show that bias against complainant's sex motivated S2's
decision. Rather, the agency found that S2 provided legitimate,
non-discriminatory reasons for his decision, that is, complainant's
performance, to support his decision. Significantly, the agency noted
that complainant complained she had never been informed her performance
was deficient, but the record revealed that in 2004 and in July 2005,
S1 noted a number of areas where complainant needed to improve her
performance.
The agency found that complainant failed to show that she was
discriminated against as alleged in claim (2). With respect to
complainant's harassment claim, the agency found that complainant
described a number of incidents involving S1, S2, and S3 that included
(among other incidents) meetings with complainant where S3 used obscene
or profane language and tried to intimidate her, S1's harsh treatment
of her regarding the use of S1's assistant's telephone, and his failure
to acknowledge or approve her request for hardship leave during the time
immediately before her father's death. The agency found that a majority
of the matters of which complainant complained involved work related
matters such as her time and attendance, productivity and work accuracy,
which were matters unrelated to complainant's sex or her EEO activity.
The agency noted that complainant herself thought that S1 disliked her
because he blamed complainant for the removal of his assistant after an
altercation between complainant, E1 and his assistant. The agency found
that the non-work-relate incidents described in complainant's complaint,
by themselves, were neither sufficiently severe or pervasive to state
a claim of harassment.
The agency reasoned that complainant failed to show the necessary link
between her sex and the incidents described in her complaint and does
not show any causal relationship between the agency's actions and her
prior EEO activity. Moreover, the agency found that S2 did not single
out complainant for her EEO activity by informing coworkers under his
supervision that a complaint had been made regarding the use of profanity
in the workplace. Rather, the agency found that in reminding employees
that profanity would not be tolerated, S2 did not use complainant's
name and that it is unlikely that employees would have been deterred
from pursuing relief under the EEO process because of S2's comments.
Accordingly, the agency found the evidence did not show that complainant
was subjected to harassment because of her sex or in reprisal for prior
EEO activity as alleged.
The decision concluded that complainant failed to prove that she was
subjected to sex or reprisal discrimination as alleged in her complaint.
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 establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected 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. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
As an initial matter we find that the complaint was properly defined.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency
shall dismiss a complaint or a portion of a complaint that fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.105,
unless the agency extends the time limits in accordance with 29 C.F.R. �
1614.604(c). Regulation 29 C.F.R. � 1614.105(a)(1) provides, in pertinent
part, that an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory. A
complainant alleging a hostile work environment will not be time barred
if all acts constituting the claim are part of the same unlawful practice
and at least one act falls within the filing period. See National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).
In the instant case, we find that the agency properly dismissed, pursuant
to 29 C.F.R. � 1614.107(a)(2) (untimely EEO Counselor contact), those
incidents of denied schedule changes and denied training that occurred
between December 2004 and February 2005, and denied training on the
handling of classified materials on June 30, 2005. Complainant did not
contact an EEO Counselor until September 2, 2005. We find, as did the
agency, that these acts were discrete agency actions that should have
prompted complainant to initiate the EEO process upon reasonable suspicion
that discrimination motivated the agency's decisions. Nevertheless,
we consider these allegations as background evidence for complainant's
overall claim of harassment. Furthermore, even if these incidents were
timely raised, we find nothing in the record to show that the agency's
actions in these incidents were motivated by sex or retaliation for
protected EEO activity.
We find the record supports the agency's final decision with respect
to complainant's claim that she was denied promotion to the GS-12
grade level. We find, as did the agency, the evidence shows that
complainant was informed of several areas of her performance that were
noted as needing improvement by S1 and that complainant was provided
with examples of her work by S2. We find that S2 provided specific
descriptions of those performance measures (for example, productivity
measured by computer records, her performance compared to others in the
same position, and her accuracy) on which he based his decision to delay
complainant's promotion. We find, as did the agency, no indication that
the denial of promotion was motivated by discrimination.
We find no material dispute regarding the meeting between S2, S3 and
complainant on August 31, 2005 concerning the conduct of S3 that
complainant found offensive (claim (2)). We assume for the sake
of argument, that S3 used the profane language attributed to him in
complainant's complaint, that a reasonable person would have been
offended and that complainant was indeed offended. We find, however,
that S3's use of profanity was not a common or frequent occurrence and
that this incident remained a one-time event of its kind. We find that
the remaining incidents of complainant's complaint, are more properly
classified as supervisory decisions with which complainant was unhappy,
but that complainant has not shown the incidents were motivated by
her sex or in reprisal for her EEO activity. We find that during
the time-frame of her complaint that complainant disagreed with the
actions of several agency officials, S1, S2, S3, and the Unit Chief
(S4). We find no common discriminatory motivation among the officials
nor sufficient evidence to tie the incidents complainant describes as
harassment to either her prior EEO activity or her sex.
CONCLUSION
We AFFIRM the agency's decision.
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 4, 2010
__________________
Date
2
0120091002
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091002