0120073984
03-31-2009
Leah A. Lapka, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (U.S. Citizenship and Immigration Services), Agency.
Reference #: 0120073984
Robert D. Whitfield, Esq.
651 W Washington Blvd #205
Chicago, IL 60661
Reference #: 0120073984
ATTN: Carmen H. Walker / MS0800
Department of Homeland Security
245 Murray Ln., SW Bldg. 410
Washington, DC 20528
Reference #: 0120073984
Leah A. Lapka
P.O.B. 704
Chicago, IL 60690
Reference #: 0120073984
Judy Maltby, Chief
EEO Complaints Program Management Office
Department of Homeland Security
Bishop Henry Whipple Federal Building
One Federal Drive, Room G-56C
Twin Cities, MN 55111-4007
Leah A. Lapka,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(U.S. Citizenship and Immigration Services),
Agency.
Appeal No. 0120073984
Hearing No. 440-2007-00050X
Agency No. HS06CIS000542
DECISION
On September 19, 2007, complainant filed an appeal from the agency's
August 20, 2007 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 for de novo
review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a District Adjudication Officer at U.S. Citizenship and Immigration
Services, District Office, Chicago, Illinois. On March 29, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the basis of reprisal for prior protected EEO activity [under
Title VII] when:
(1) Complainant's within-grade increase from GS-12, Step 1 to GS-12,
Step 2 was
delayed; and
(2) Complainant's supervisor rated her overall performance for the
rating period April 1, 2004 to March 31, 2005, as "Fully Successful."
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's motion for a decision without a hearing
and issued a decision without a hearing on July 17, 2007.
The AJ found that complainant was not subjected to any adverse treatment
as to either issue. Specifically, as to (1), complainant's step increase
was delayed, as it ought to have been, by a few pay periods because of
complainant's non-pay status during the year she was at Step 1. She was
not entitled to a step increase any sooner than when it was issued. As to
(2), the appraisal was unofficial, never signed by complainant, and in no
way harmed her advancement opportunities or adversely affected her chance
of obtaining employment benefits or awards.1 Further, the undisputed
testimony of record indicates that when a final rating was issued in March
2006 (the only rating in the record for the rating period in question),
complainant received the highest possible rating of "Outstanding."
The AJ found no evidence of discrimination. 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.
On appeal, complainant recites her version of the facts, and points out
that her performance appraisal rating was only changed after management
learned that she had initiated EEO activity. Complainant also contends
that the evidence shows that the rating in question was not merely
"preliminary" and was "treated as final" by management. Specifically, she
notes that it was signed by management, and forwarded to Human Resources.
Complainant requests a hearing before an Administrative Judge.
The agency, in response, asserts that complainant did not specifically
object to the finding of no discrimination as to issue (1), and therefore,
the agency limits its argument to issue (2). The agency contends that the
AJ correctly found that complainant suffered no adverse action as to issue
(2) as the undisputed evidence of record shows that the appraisal was
not final and was never officially issued to, or signed by, complainant.
The agency additionally asserts that assuming complainant did suffer
an adverse action, the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the rating official stated that
complainant was rated "Fully Satisfactory" at the time the unofficial
appraisal was prepared based upon her understanding that complainant
had primarily worked only on her own backlog. However, upon further
investigation of complainant's work during the rating period, she found
that complainant was doing additional duties and therefore, she raised
the rating in the official appraisal. The agency contends that the
record contains no persuasive evidence of pretext. The agency asks the
Commission to affirm the final order.
Initially, we agree that complainant has not show that she suffered
an adverse action as to either issue (1) or (2). We do find however,
that both incidents ought to be analyzed jointly within a hostile
work environment harassment framework. In order for harassment to
be considered as conduct in violation of the laws that the Commission
enforces, it must be pervasive or severe enough to significantly and
adversely alter the conditions of the victim's employment and create
an abusive working environment. Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993). The conduct in question is evaluated from the standpoint
of a reasonable person, taking into account the particular context in
which it occurred. Highlander v. K.F.C. National Management Co., 805
F.2d 644 (6th Cir. 1986). The Commission notes that unless the conduct
is very severe, a single incident or group of isolated incidents will
not be regarded as discriminatory harassment. Walker v. Ford Motor Co.,
684 F.2d 1355, 1358 (11th Cir. 1982). Here, the alleged harassment was
neither severe nor pervasive enough to be considered unlawful.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.2 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
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 31, 2009
__________________
Date
1 Complainant herself states that she was not even aware of the appraisal
until she found it in a mail crate on December 22, 2005.
2 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120073984
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013