Janet M. Clawson-Cano, Complainant,v.Ken L. Salazar, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 10, 2009
0120064952 (E.E.O.C. Mar. 10, 2009)

0120064952

03-10-2009

Janet M. Clawson-Cano, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.


Janet M. Clawson-Cano,

Complainant,

v.

Ken L. Salazar,

Secretary,

Department of the Interior,

Agency.

Appeal No. 0120064952

Hearing No. 320-2004-00085X

Agency No. WBR-03-027

DECISION

On August 22, 2006, complainant filed an appeal from the agency's

September 5, 2006, final order 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. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as an Office Automation Clerk, GS-0326-04 at the agency's Western Colorado

Area Office of the Bureau of Reclamation in Durango, Colorado. The record

reflects that complainant began work in November 2003. Complainant's

duties included serving as the receptionist for the Durango Office;

performing clerical assignments; operating office automation equipment,

such as computers; drafting routine memoranda and letters; routing mail;

and taking notes at meetings. In November or December 2002, complainant

was also asked to do work in the mail room and take on payroll and travel

manager duties. Complainant's employment was subject to a one-year

probationary period.

On January 9, 2003, complainant's supervisor, the Information Technology

Specialist, evaluated her performance for the period of November 4,

2002 to December 31, 2002. Complainant was given a "results achieved"

rating for four performance areas.

On January 24, 2003, complainant's co-worker awarded her a $100 "Peer

Recognition Award." The award was given to complainant based on her

efforts in executing numerous duties in the face of a staff shortage.

On February 21 2003, complainant arrived at work and discovered that the

front door was locked. Complainant went to another door, found that

the other door was also locked, and repeatedly kicked the door until

someone inside the facility opened the door for her.

On February 25, 2003, complainant was given a 90-day performance

evaluation by the Area Services Division Manager, which was required

for probationary employees. Complainant was informed at that time that

management found several deficiencies in her work performance, including

failing to communicate well with her supervisor; failing to conduct office

affairs with complete confidentiality; failing to pay attention to detail

with respect to her work assignments; publicly losing her composure when

the front door was locked on February 21, 2003; and being absent from the

front desk for an extended period of time without having someone cover

for her. Complainant alleged that the Area Services Division Manager

advised complainant on that date to begin looking for another position.

On March 6, 2003, complainant initiated EEO Counselor contact.

On March 14, 2003, the Area Services Division Manager issued a memorandum

to complainant summarizing what was discussed at the February 25, 2003

meeting. The memorandum specifically listed the areas that complainant

needed to work on.

On April 18, 2003, complainant was issued a notice of removal.

The notice informed complainant that she was immediately being placed

on administrative leave and that her employment would be terminated in

14 days. Complainant was escorted off the premises by agency officials

after she was informed of her termination.

On April 29, 2003, complainant resigned from the agency effective May 2,

2003.

On May 6, 2003, complainant filed an EEO complaint alleging that she

was discriminated against on the bases of race (multi-ethnic) and in

reprisal for prior protected EEO activity under Title VII when the agency

subjected her to a hostile work environment that ultimately resulted in

her constructive discharge.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and a notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. The AJ held a hearing over five days on June

14-16, 2005 and July 26-27, 2005. On July 31, 2006, the AJ issued a

decision finding no discrimination. Specifically, the AJ found that

complainant failed to establish a prima facie case of race discrimination.

Although the AJ found that complainant did establish a prima facie

case of retaliation, the AJ also found that complainant failed to

establish that the agency's legitimate, nondiscriminatory reasons for

her termination were a pretext for unlawful discrimination. Finally,

the AJ found that complainant was not subjected to unlawful harassment

based on her race or in retaliation for her protected EEO activity and

that "the circumstances of Complainant's separation from the Agency

do not constitute a constructive discharge." The agency subsequently

issued a final order adopting the AJ's finding that complainant failed

to prove that she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant argues that the AJ erred in finding no

discrimination. Complainant reiterates arguments from below and requests

that the Commission order reinstatement and award compensatory damages.

In response, the agency argues that the AJ's decision properly found no

discrimination and urges the Commission to affirm its final decision.

ANALYSIS AND FINDINGS

As an initial matter, the Commission notes that portions of the hearing

in this case were conducted by telephone. The Commission has held

that testimony may not be taken by telephone in the absence of exigent

circumstances, unless at the joint request of the parties and provided

specified conditions have been met. Louthen v. United States Postal

Service, EEOC Appeal No. 01A44521 (May 17, 2006).1 However, since the

facts in the instant case pre-date our decision in Louthen, we assess the

AJ's conduct in holding a telephonic hearing by considering the totality

of the circumstances. See Villanueva v. Department of Homeland Security,

EEOC Appeal No. 01A34968 (August 10, 2006).2 It is unclear whether

exigent circumstances existed, yet even assuming there were none, we find

that there were also no issues of witness credibility that may have been

impacted by the taking of testimony telephonically. As such, we conclude

that the taking of telephonic testimony amounted to harmless error.

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.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

Complainant alleged that she was subjected to a hostile work environment

when she was issued a negative performance evaluation; counseled by her

supervisor; ordered to perform work outside her position description;

ordered to follow a dress code; denied proper training; treated

differently than her co-workers; and informed that she was being

terminated in April 2003.

Harassment is actionable only if the incidents to which complainant

has been subjected were "sufficiently severe or 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., 523 U.S. 75 (1998);

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). To establish a prima facie case of harassment, complainant

must show that: (1) she is a member of a statutorily protected class

and/or was engaged in prior EEO activity; (2) she was subjected to

unwelcome verbal or physical conduct related to her membership in that

class and/or her prior EEO activity; (3) the harassment complained of

was based on her membership in that class and/or her prior EEO activity;

(4) the harassment had the purpose or effect of unreasonably interfering

with her work performance and/or creating an intimidating, hostile,

or offensive work environment; and (5) there is a basis for imputing

liability to the employer. See Roberts v. Department of Transportation,

EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of

Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct

is to 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).

Upon review of the record, we find that complainant failed to provide

sufficient evidence in the record to show that the cumulative incidents

she cites are sufficiently severe or pervasive to create a hostile

work environment. The record supports the AJ's determination that

"the incidents regarded by Complainant as constituting harassment

were in fact legitimate actions taken by the Agency in order to train,

monitor Complainant's work performance, and administer corrective action

including discipline when necessary in an attempt to improve Complainant's

job performance." Moreover, we find no persuasive evidence in the record

to show that a reasonable fact finder would find that any of the alleged

harassment was motivated by unlawful animus towards complainant's

protected classes. With respect to complainant's allegation that

she was subjected to retaliation, we note that management officials

began criticizing complainant's work performance prior to the date

she initiated EEO contact.3 While the record strongly suggests that

complainant did not get along with her supervisor, EEOC regulations

are not to be used as a "general civility code." Rather, they forbid

"only behavior so objectively offensive as to alter the conditions of the

victim's employment." Oncale, 523 U.S. at 81. We further find that, for

every tangible employment action taken by management, complainant failed

to establish that the agency's articulated legitimate, nondiscriminatory

reasons for its actions were a pretext for unlawful discrimination based

on race or retaliation for her prior protected EEO activity.

Finally, we find that complainant has failed to establish a valid claim

of constructive discharge. The Commission has established three elements

which complainant must prove to substantiate a claim of constructive

discharge: (1) a reasonable person in complainant's position would have

found the working conditions intolerable; (2) conduct that constituted

discrimination against complainant created the intolerable working

conditions; and (3) complainant's involuntary resignation resulted from

the intolerable working conditions. See Walch v. Department of Justice,

EEOC Request No. 05940688 (April 13, 1995). We find that complainant

has not shown that the agency engaged in discrimination which resulted

in intolerable working conditions.

CONCLUSION

After a careful review of the record, the Commission finds that the AJ's

factual findings are supported by substantial evidence in the record.

We discern no basis to disturb the AJ's decision. Accordingly, after

a careful review of the record, including complainant's contentions

on appeal and arguments and evidence not specifically addressed in the

decision, the agency's final order is AFFIRMED.

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

March 10, 2009

Date

1 In Louthen, the Commission promulgated its policy regarding

the taking of telephonic testimony in the future by setting forth

explicit standards and obligations on its Administrative Judges

and the parties. Louthen requires either a finding of exigent

circumstances or a joint and voluntary request by the parties

with their informed consent. When assessing prior instances of

telephonic testimony, the Commission will determine whether an

abuse of discretion has occurred by considering the totality of

the circumstances. In particular, the Commission will consider

factors such as whether there were exigent circumstances, whether

a party objected to the taking of telephonic testimony, whether

the credibility of any witnesses testifying telephonically is at

issue, and the importance of the testimony given telephonically.

Further, where telephonic testimony was improperly taken, the

Commission will scrutinize the evidence of record to determine

whether the error was harmless, as is found in this case.

2 In this case, the parties did not object to conducting a

portion of the hearing by telephone. However, the mere lack

of objection is not dispositive. See Louthen v. United States

Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).

3 Although complainant also alleged that the agency was retaliating

against her, in part, because of her whistleblowing activity, it is well

settled that engaging in whistleblowing is not protected EEO activity.

See Giannou v. Department of Housing and Urban Development, EEOC Request

No. 05880911 (February 13, 1989) (holding that complainant failed to

state a claim regarding claims or retaliation for whistleblowing).

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Office of Federal Operations

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