01A13120
09-26-2002
Lakshmi M. Kumar, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Lakshmi M. Kumar v. Department of the Army
01A13120
September 26, 2002
.
Lakshmi M. Kumar,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13120
Agency Nos. BODVFO980210150,
BODVFO9904J0190
Hearing No. 110-AO-8109X-PD
DECISION
Complainant timely initiated an appeal from the agency's final order
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 order.
The record reveals that complainant, a Family Services Coordinator,
GS-301-09, at the agency's Army Community Service (ACS) facility at
Fort McPherson in Georgia, filed a formal EEO complaint on July 24,
1998, which she amended on August 25, 1998, alleging that the agency
had discriminated against her when:
she was subjected to a wrongful reorganization procedure because of her
race (Asian) and national origin (Indian); and
she was harassed and subjected to a hostile work environment because
of her race and national origin;
On June 18, 1999, complainant filed a second complaint, which was amended
in 1999, alleging:
her position was abolished because of her race, national origin, religion
(Hindu), or as reprisal for participation in protected EEO activity; and
she was harassed and the agency attempted to reassign her to a GS-7
position because of her race, national origin, religion, or reprisal
for filing her first EEO complaint.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ consolidated the two complaints and held a hearing.
Following the hearing, the AJ issued a decision finding no discrimination.
The AJ concluded, as to issue three only, that complainant established a
prima facie case of discrimination on the alleged bases. As to issue one,
the AJ found that the agency articulated a legitimate, nondiscriminatory
reason for its action. Specifically, a Process Action Team (PAT) was
established to implement reorganizations of three directorates, one
of which was the Directorate of Community Services. PAT recommended
the abolishment of complainant's position. The AJ further found that
complainant's first-line supervisor, also the Chief of Army Community
Services (S1), had no influence over PAT and its recommendations regarding
which positions would be abolished. The AJ further found that complainant
was never actually displaced because she accepted another position in
Germany. The AJ concluded that complainant did not establish that the
agency's reasons were pretextual, noting that the agency's consistent
rating of complainant as outstanding or excellent belies any animosity
on the part of her first line supervisors toward her.
The AJ found that the incidents complained of do not rise to the level
required to constitute hostile work environment. The AJ initially noted
that there is no evidence of a racial slur. The AJ additionally addressed
complainant's contention that she has been referred to as �that Indian,�
concluding that it was inadequately derogatory to rise to the level of
harassment based on national origin. As to issue three, despite finding
that complainant established a prima facie case of discrimination,
the AJ nevertheless found that the agency articulated a legitimate,
nondiscriminatory reason for its action. Specifically, the position
was abolished pursuant to the PAT recommendation and it was a necessary
business decision. The AJ found that complainant did not establish that
more likely than not, the agency's articulated reason was a pretext to
mask unlawful discrimination. As to issue four, the AJ found no evidence
of harassment, noting that complainant described no specific incidents of
harassment, and as to the offer of a position at a lower level, the AJ
found that this was merely an offer, and as such, did not constitute an
adverse action. The AJ concluded, as to all issues, that complainant
failed to meet her burden of establishing that the agency officials
were motivated by a discriminatory or retaliatory animus toward her.
The agency's final order implemented the AJ's decision.
On appeal, complainant, through her attorney, restates arguments
previously made at the hearing. In particular, complainant contends
that management's failure to follow the agency's procedures regarding
displaced employees is indicative of their effort to discriminate and
retaliate against complainant. Complainant points to the testimonies of
several witnesses, that complainant was discriminated against, and that S1
has a history of favoring White employees, over non-Whites. Complainant
contends that the AJ ignored evidence which favored complainant, and the
AJ's finding of no discrimination is contrary to the weight of evidence
in the record. Complainant additionally raises concerns regarding the
EEO process.<2> The agency requests that we affirm its final order.
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.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
As to issues one and three, we assume, arguendo, that complainant
established a prima facie case of discrimination on the alleged bases.
We concur with the AJ that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, and that complainant has
failed to establish that more likely than not, the agency's reasons
are pretextual. In so finding, we note that noncompliance with
internal agency procedures does not, by itself, establish that the
agency intentionally discriminated. We have no authority to enforce
the agency's own internal procedures where, as here, there is no
evidence from which we can infer that the agency's departure from its
procedures was motivated by discrimination based on complainant's race,
national origin, religion, or prior EEO activity. As to complainant's
allegation that the agency attempted to reassign her to a GS-7 position,
the AJ's finding that the agency merely offered complainant the position
is supported by substantial evidence in the record.
As to complainant's claims of harassment raised in issues two and four, we
note that based on the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on her membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The evidence in the record
is insufficient to support a finding that management's actions towards
complainant were sufficiently severe or pervasive to alter the terms or
conditions of employment and create an abusive or hostile environment.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
at issue in this case, were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
race, national origin or religion. We discern no basis to disturb
the AJ's decision. 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 order.
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
September 26, 2002
__________________
Date
1 The agency initially dismissed the second harassment claim, as well
as another allegation brought by complainant concerning the manner in
which her complaint was processed. Complainant appealed the dismissal
of the two issues to the Office of Federal Operations, who reversed the
dismissal of the harassment issue, but affirmed the dismissal of the
issue concerning the manner in which the complaint had been processed.
See Kumar v. Department of the Army, EEOC Appeal No. 01990992 (September
22, 1999).
2 A review of the record reveals an affidavit from an EEO Counselor,
alleging that his Counselor's Report was tampered with. See Hearing
Exhibit 35. The EEO Counselor's allegations in the instant case seriously
call into question the ability of the agency to develop an impartial
and appropriate factual record. According to 29 C.F.R. � 1614.108(b),
"the agency shall develop an impartial and appropriate factual record upon
which to make findings on the claims raised by the written complaint."
An appropriate factual record is one that allows a reasonable fact finder
to draw conclusions as to whether discrimination occurred. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), (November 9, 1999). In the instant case, complainant had
the opportunity to raise concerns related to the EEO process before
an Administrative Judge. As such, these allegations of abuse of the
EEO process have been reviewed, and therefore, despite being of grave
concern to the Commission, will not change the decision in this case.