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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