01A11315
06-12-2002
Joan A. Van Chantfort, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Joan A. Van Chantfort v. Department of Agriculture
01A11315
June 12, 2002
.
Joan A. Van Chantfort,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A11315
Agency No. 980760
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 FAD.
BACKGROUND
Complainant alleged that she was discriminated against on the basis
of reprisal (prior EEO activity) and subjected to a hostile working
environment when (1) the Deputy Chief (DC) of the Design Center criticized
complainant's performance in a three-page memorandum, dated March 23,
1998; (2) her first-level Supervisor (S1) wrote her a memorandum accusing
her of losing an electronic file; (3) S1 failed to allow complainant
input into her Individual Development Plan (IDP); and (4) the Resource
Manager (RM) temporarily suspended the complainant's vendor credit card
privileges. Complainant sought EEO counseling and subsequently filed
a formal complaint on June 22, 1998.
The record reveals that during the relevant time, complainant was employed
as an Electronic Production Specialist, GS-1001-11, at the agency's
Design Center, Office of Communications, Washington, D.C. facility.<1>
Complainant's duties included providing material for printed matter, and
working on presentation material like charts and posters. Complainant
stated that she filed her prior EEO complaint in March 1997.
Concerning DC's memorandum, complainant stated that in March 1998, prior
to leaving on a two-week vacation, she gave DC part of her work product.
During her absence, DC wrote her a memorandum, in part, thanking her for
two items, and noting a few problems with other items. DC, a supervisor
for 18 years, supervised three employees directly and others indirectly.
DC also created standards and established formats for the agency.
Complainant stated that the memorandum was very critical of her work,
and complained about using the wrong format. Complainant responded with
a memorandum pointing out DC's inaccuracies and defending her work;
and stated that DC's memorandum was in retaliation for her prior EEO
complaint because everything that she had done was criticized unfairly.
DC stated that complainant did not take criticism well; and that
complainant responded to criticism by issuing denials, blaming others
for her own errors, and by claiming harassment.
Concerning the lost file, complainant stated that while working on a
newsletter project for S1, DC came to talk to her about the project.
Complainant stated that when she and DC could not find some electronic
files that were needed for the project, DC called S1 at home and,
subsequently, the files were located. Complainant stated she finished the
project but a few changes were needed and, when she was on vacation, S1
made the changes but failed to archive the final version of the project.
Complainant stated that S1 wrote a memorandum to complainant accusing
complainant of losing the file. Complainant responded by memorandum
stating that S1 had sent the final version of a file to the printer
without saving a copy. S1 stated that while she was on sick leave,
the client wanted some changes made to the project, so S1 called DC and
asked him to ask complainant to get the file off the computer archive,
make the changes, and re-archive the file before sending the project to
the printer. However, complainant worked directly off the archive file
contrary to the usual procedure of copying the file onto a hard drive
and working on the file on the hard drive. S1 alleged that complainant
sent the project to the printer but failed to re-archive the project.
S1 stated that complainant's mistake cost the client time and money.
She indicated that she wrote the memorandum to correct complainant's
performance and to do her job as complainant's supervisor. Complainant
stated that the memorandum was in retaliation for her prior EEO complaint
because previously S1 would have just talked to her about it and not
automatically have blamed her for losing the file.
Concerning her IDP, complainant stated that she requested certain
training courses; however, S1 scheduled her for a class that she did
not request. The Chief (C) of the Design Center stated that she and the
supervisors discussed what funds would be available for training and that
money was to be spent according to performance needs. DC stated that
complainant's training requests included many courses that had nothing to
do with her duties, and DC advised S1 that complainant should be taking
courses related to her job. S1 stated that complainant needed to receive
software training and so advised complainant. Complainant believed that
this incident was in retaliation for her prior EEO activity because it
seemed that nothing she did was taken seriously.
Concerning the credit card, complainant stated that C came to her with
a rush job and complainant had to hire a vendor to do it. Complainant
stated that she told the vendor to start the job. Complainant stated that
she assumed that she had the authority to order the work since C had said
that the job had to be done immediately. RM determined that complainant
had improperly chosen to use the credit card system for vendor payment.
RM stated that he conducted meetings to explain credit card rules;
that he had handed out written procedures for everyone to follow; that
he emphasized in his memos to the staff that employees must get prior
approval before attempting to use the card; and that complainant was
aware of the rules. C stated that complainant had accused RM of being
unprofessional and having harassed the vendor. Further, C stated she
contacted the vendor who contradicted complainant's statement; and
thereafter, complainant accused C of retaliation for prior EEO activity.
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. Complainant
requested a final decision.
In its FAD, the agency concluded that complainant had not established
a prima facie case of reprisal, nor demonstrated the existence of a
hostile work environment. Further, assuming arguendo that a case of
reprisal had been established, the FAD concluded that no hostile work
environment was established. Complainant makes no new contentions
on appeal. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of retaliation. See Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993). Claims of reprisal discrimination are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (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(s) 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(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
The Commission notes that the McDonnell Douglas analysis need not
be adhered to in all cases. In appropriate circumstances, when the
agency has established legitimate, nondiscriminatory reasons for its
employment decision, the trier of fact may dispense with the prima
facie inquiry and proceed to the ultimate stage of the analysis,
that is, whether the complainant has proven by preponderant evidence
that the agency's explanations were a pretext for actions motivated by
prohibited discriminatory animus. See United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711 (1983). At all times, complainant
retains the burden of persuasion, and it is her obligation to persuade
by a preponderance of the evidence the ultimate issue of whether the
agency's action was motivated by discrimination. Burdine, 450 U.S. at
248; see U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711
(1983); see also O'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308 (1996); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Absent a showing that the agency's articulated reason was used as a tool
to discriminate against her, complainant cannot prevail.
In order to prove a case of harassment, the complainant must establish,
by a preponderance of the evidence, the existence of five elements: (1)
she is a member of a statutorily protected group; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected group; (3) the harassment complained of was based on the
statutorily protected group; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with her work environment and/or creating an intimidating,
hostile, or offensive work environment; and (5) that there is a basis
for imputing liability to the employer. Henson v. City of Dundee,
682 F.2d 987, 903-05 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a Title VII
violation 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).
The Commission notes that unless the conduct is severe, a single group
of isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). That is,
the conduct at issue must be sufficiently pervasive and must be directed
at the employee because of her membership in a protected group.
Assuming arguendo that complainant has established a prima facie case
of reprisal, we find that the agency has articulated legitimate,
non-discriminatory reasons for its actions. With respect to DC's
memorandum, it contained both appropriate praise and constructive
criticism. Management is obligated to provide thoughtful instructions
relating to performance of employees even though it might be perceived
as unwarranted criticism. With respect to the missing file, S1 wrote
the memorandum to correct complainant's performance and to do her job
as complainant's supervisor. With respect to the training courses,
complainant was in fact allowed input into her IDP courses, but she is
simply dissatisfied with the course recommended for her. The agency
was required to balance the needs of the employee with the needs of
the office, taking into consideration skill enhancement, budget, and
recommendations of the supervisors. Because of the limited budget,
the focus was on building essential job-related skills. With respect
to the credit card, complainant did not follow proper agency rules
concerning the use of the credit card system when procuring services
from an outside vendor. The agency had internal requirements for the
purchase of services in order to maintain an efficient, legal, and
effective operation. Complainant's failure to follow the requirements
justified suspension of her credit card privileges.
These are legitimate, nondiscriminatory reasons for the agency's action.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination.
Further, the conduct at issue was not severe, or sufficiently pervasive
to be harassment. The agency's actions did not create a hostile work
environment. Indeed, as we note above, the complained of actions by
the agency were entirely appropriate under the circumstances.
CONCLUSION
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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
June 12, 2002
Date
1 The Design Center is the corporate design office handling projects
for USDA agencies.