01a43120
11-01-2004
Jacqueline Barnes, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Jacqueline Barnes v. Department of the Navy
01A43120
November 1, 2004
.
Jacqueline Barnes,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A43120
Agency No. 03-00027-N001
DECISION
Complainant timely initiated an appeal from the agency's final decision
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. 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 complainant, a Financial Management Analysis
Specialist, at the Marine Corps Community Services in Quantico, Virginia,
filed a formal EEO complaint on October 8, 2001, alleging that the
agency discriminated against her on the basis of race (African-American)
and in reprisal for prior EEO activity when:
(1) she was issued a letter of caution in April of 2002;
she was issued a letter of reprimand on June 17, 2002;
she was removed on August 2, 2002;
she was harassed and subjected to a hostile work environment as
demonstrated by the following incidents:
(a) her request to work at home was denied on October 26, 2001, and
she was subject to team rules;
her supervisor changed her work hours;
(c) she was given an unfair performance appraisal;
(d) she was asked on several occasions in January of 2002, to resolve
issues that were beyond her area of responsibility and technical
expertise, and co-workers refused to receive instructions from her;
she was subjected to assault by co-workers in February 2002, when they
threw paper at her;
an employee came into the office in which she was working on June 17,
2002, and informed two other employees that he had brought a baseball
bat with him and the two other co-workers turned and stared at her;
she was banned from her office on June 18, 2002, when co-workers refused
to work with her after they were notified that she had a contagious
disease; and,
on July 29, 2003, while under a doctor's care, her supervisor sent her
letters and called her at home in an attempt to harass her.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision, concluding
that complainant was not discriminated against because of her race or
in reprisal for prior EEO activity. Complainant submitted a brief in
response to the agency's brief in opposition to her appeal approximately
three months after the agency submitted its brief. Due to the untimely
nature of complainant's brief, we decline to consider it. The agency
restates arguments made in the final decision and requests that we
affirm it.
Issue (1) concerned the letter of caution. The complainant stated that
she was given the letter because she reported discrimination and unfair
hiring practices. She stated that she requested assistance from her
supervisor, Manager, Financial and Analysis Section (White) (S1) but
was provided with no assistance. S1 stated that she wrote complainant
a letter of caution after discussing complainant's need to improve her
performance with complainant's second level supervisor (S2) (White).
S2, she stated, told her to place complainant on a 60-day performance
improvement plan (PIP). S2 stated in his affidavit that complainant's
work performance needed improvement. He further stated that the letter
of caution listed the assignments she had not completed. S1 noted that
she and other staff members were available to assist complainant in
any technical area but complainant never asked her for assistance and
she was unaware of complainant ever asking anyone else for assistance.
S1 asserted that no other employees had problems completing their
assignments on time.
With respect to issue (2), the record reveals that complainant was
issued the letter of reprimand on June 17, 2002. The letter stated that
she failed to complete the work assignments she had been given in the
letter of caution. S2 stated that the letter of reprimand was issued
because complainant's performance had been �slack� for over six to nine
months and she was not responding to counseling from her superiors.
Complainant stated that the letter of reprimand was a continuation of
the retaliation and harassment.
Issue (3) concerns complainant's removal. S1 stated that she proposed
to remove complainant and S2 made the decision to remove her. She stated
that complainant was removed for work performance issues. Specifically,
she asserted that complainant had been given opportunities to improve
her work and it appeared to get worse as time passed with no improvement.
S2 stated that complainant was removed for poor performance.
With respect to issue (4), complainant contended that two white females
were allowed to work at home while she was not allowed after she reported
discrimination, harassment and unfair personnel actions. Further, she
asserted that the team work rules were only applied to her. The record
reveals that in October 2001, complainant's supervisor was replaced
by S1. Complainant's former supervisor stated that she worked with her
successor from home while she was preparing to retire because the team
was in the middle of an upgrade. She stated that she had nothing to do
with the day-to-day operations in the office but was heavily involved
in the software upgrade. She stated that she continued to work for S2.
S1 stated in her affidavit that Finance was a team environment and she
felt that there needed to be a formal process (team rules) under which,
when a conflict arose, employees would have a forum to raise their
concerns instead of going over her head. She stated that the team rules
were applied to all team members. She stated that complainant never
requested to work from home. Complainant disputed this and stated that
she did ask S1 to work at home.
Concerning her allegation regarding her work hours being changed,
complainant stated that her work hours were changed after she reported
unfair work practices while other similarly situated employees did not
have their hours changed. S1 stated that complainant started at 6:30
a.m. and left at 3:00 p.m. She asserted that there were times that west
coast agency commands needed to talk to complainant, but she had left
for the day. For this reason, she stated that she changed complainant's
starting time to 7:00 a.m. which made a difference with the west coast
commands as well as her staff. She noted that all other employees
started at 7:00 a.m or later.
Regarding her performance appraisal, complainant stated that she was
doing her job and the jobs of others, and other White team members were
not held to the same standard. S1 stated that she gave complainant an
average rating because her performance did not warrant a higher rating.
She noted that complainant had not completed several assignments.
Only two other employees (White), she stated, were rated higher than
complainant.
Complainant stated that she was given assignments that were beyond her
area of responsibility and technical expertise. She contended that they
were system software and documentation assignments. She stated that
she was not provided any assistance in accomplishing the tasks she was
assigned. She further asserted that when she was the designated trainer
and acting supervisor, her co-workers refused to receive instructions on
system issues. She stated that they did this because she had reported
unfair practices. She noted that the co-workers' attitude worsened
toward her.
With respect to complainant's allegation concerning her being assigned
work beyond her expertise, S1 stated that she was aware of only one
incident that was mentioned in the Counselors Report concerning the
discount issue which are accounts payable. This, she stated, was
under the complainant's responsibility but while she was on leave it
was assigned to another staff member. She stated that when complainant
returned from leave, it was assigned to her and she never completed work
on the project. She stated that since they worked in a team environment,
her employees may have to work on assignments that are outside of their
expertise. She stated that she was unaware of any co-workers refusing
to take instructions from her.
With respect to the thrown paper issue, complainant stated that she
had reported discrimination and subsequently two employees on her team
had thrown paper at her. She contended that this was a hostile and
threatening environment where her team members were allow to throw
paper at her, and yell and scream at her without corrective action.
She stated that she reported this to S1. S1 stated that she did not
recall the incident.
Complainant stated that an employee came into work with a baseball bat and
in front of her asked another employee whom he should hit. She contended
that she felt threatened. She asserted that she reported the incident
to her supervisor and there was no corrective action. S1 stated that
she had no knowledge of any incident concerning the baseball bat and
was never notified by complainant.
Complainant stated that she was banned from her office for having a
contagious disease. In her affidavit, complaint stated that she never
told anyone that she had a contagious disease. S1 stated that she
received a call from an employee of the Medical Facility who stated that
they had informed complainant that she had an infectious disease that
was highly contagious and she should leave work immediately. She stated
that she left a message on complainant's home telephone number for
her to be cleared by a doctor before she returned to work. The next
day, she asserted that complainant returned to work without a doctor's
release and was sent to a doctor to clear her to work. S1 stated that
no other employee had come to work with a contagious disease and needed
to be sent home. S2 stated that complainant was told to get a clearance
from her doctor by the Program Manager for Personnel (African-American
female) before returning to work because of the concern for the health
of the staff. The Program Manager for Personnel stated that she told S1
to call complainant and tell her to bring a doctor's note clearing her
to work and granted her administrative leave in order to see the doctor.
Complainant asserted that, while she was on sick leave, S1 called a number
of times and other members of the agency sent her letters. S1 stated that
she contacted complainant by phone regarding the notice of termination
that she had sent to her and to find out when she would return to work.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973). First, complainant must 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. McDonnell Douglas, 411 U.S. at 802. Next, the agency must
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the complainant must prove,
by a preponderance of the evidence, that the legitimate reason proffered
by the agency was a pretext for discrimination. Id. at 256.
With respect to complainant's claim of retaliation, 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).
Issues (1), (2) and (3) concern events that culminated in complainant's
removal and will be addressed together. Assuming arguendo that
complainant has established a prima facie case of race discrimination,
we find that the agency did articulate legitimate, nondiscriminatory
reasons for issuing complainant the letter of caution, the letter of
reprimand and removing her. Both S1 and S2 stated that complainant's
performance was lacking and she failed to finish her assignments.
Complainant did not demonstrate, by a preponderance of the evidence,
that the agency's reasons were a pretext for discrimination on the basis
of race. Specifically, complainant's contentions in her affidavit were
conclusory. Aside from stating that she was subject to �false and unfair
treatment� and harassment, complainant submitted no specific evidence
of pretext. Further, there is no evidence in the record to support
the conclusion that the legitimate reason proffered by the agency was
a pretext for discrimination.
Concerning her allegation of reprisal, complainant was unable to establish
a prima facie case of reprisal. Specifically, complainant failed to
show that a nexus existed between her prior EEO activity and her being
issued the two letters and being removed. Both complainant's first and
second-level supervisors stated that they were aware of her previous
EEO activity which had occurred prior to S1's tenure as supervisor.
Complainant stated in her affidavit, dated May 8, 2003, that her EEO
activity �occurred several years ago� when she contacted the EEO office
and management regarding discriminatory treatment towards herself.
We find that complainant assertions of EEO activity which occurred no
sooner than May of 2001, do not show that the adverse actions, beginning
in April of 2002, followed the protected activity within such a period
of time and in such a manner that a reprisal motive may be inferred.
With respect to issue 4 (e) and (f), which concerned alleged harassment
by coworkers, S1 stated that she had no knowledge of complainant being
subject to assault by her coworkers when they threw paper at her and
when a coworker came into her office with a baseball bat. Further,
she stated that complainant never notified her of the actions of the
coworkers. No other witnesses corroborated complainant's statements.
We therefore find that complainant has not met her burden of showing,
by a preponderance of the evidence, that she reported harassment by her
coworkers to her supervisor.
With respect to issue 4(g), there is no evidence that she was banned from
her office when her co-workers refused to work with her because they were
notified she had a contagious disease. In fact, testimony of record
indicates that complainant told management that she had a contagious
disease. S1 stated that complainant told her that she had a contagious
disease. S2 stated that complainant was told to return to work with a
doctor's clearance because of their concern for the health of the staff.
We therefore find that complainant has not met her burden of showing,
by a preponderance of the evidence, that she was banned from her office
after her coworkers refused to work with her.
We find that issue (4) (a), (b), (c), (d) and (h) are properly framed as a
claim of harassment, comprised of five alleged incidents. Harassment of
an employee that would not occur but for the employee's race, color,
sex, national origin, age, disability, or religion is unlawful, if
it is sufficiently patterned or pervasive. Wibstad v. United States
Postal Service, EEOC Appeal No. 01972699 (August 14, 1998) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. Harassment is actionable only if the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Although complainant identified a series of events and circumstances
over a period of nearly one year that she found to be unpleasant or
demeaning, these appear to us to result from the sort of disappointments
and disagreements that inevitably occur in the workplace. We find
that even taking these incidents as true, they are not so severe or
pervasive as to entitle complainant to relief under the federal employment
discrimination laws. See Lynch v. United States Postal Service, EEOC
Appeal No. 01981027 (July 16, 1999).
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 decision.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 1, 2004
__________________
Date