0120080995
08-19-2009
Linda S. Hamilton, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Linda S. Hamilton,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120080995
Agency No. DOS-F-007-07
DECISION
On December 19, 2007, complainant filed an appeal from the agency's
November 21, 2007 final decision 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 accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Public Affairs Specialist, GS-1035-11, in the Public Affairs Unit
of the Office of Public Diplomacy and Public Affairs, Bureau of Western
Hemisphere Affairs (WHA), in Washington, D.C. Complainant has been in
this position sine January 2005. From August 1, 2005 until October 4,
2006, she reported to Ms. JE, but since October 5, 2006, complainant
has reported to Mr. EW.
In a formal EEO complaint dated October 24, 2006, complainant alleged that
she was discriminated against on the bases of race (African-American)
and in reprisal for prior protected EEO activity (contacted an EEO
Counselor for the instant complaint) when:
1. she was reassigned to a new GS-11 position description that resulted
from a desk audit.
On December 18, 2006, complainant amended her complaint to include the
following claims:
2. Mr. EW denied her requests to attend training at the National Foreign
Affairs Training Center (NFATC); and
3. Mr. EW denied her leave requests and her leave requests were subject
to additional scrutiny.
On February 1, 2007, complainant again amended her complaint to include
the following claims:
4. on January 10, 2007, she was issued a "Letter of Warning;" and
5. she was issued a negative performance evaluation for the period of
October 5, 2006 through December 31, 2006.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that she was subjected to discrimination as alleged, finding
that complainant failed to proffer evidence to rebut the agency's stated
reasons for its actions.
On appeal, complainant contends that the Report of Investigation (ROI)
contains numerous factual errors and omitted relevant information such
as the following: (1) the description of Exhibit 19 stated "Emails
Regarding the Complainant's Desk Audit," but Exhibit 19 only contains a
one-page desk audit; (2) the description of Exhibit 26 stated "Department
Policy/Regulations on Employee Training," but contains nine pages of
information from the Career Development Resource Center on Individual
Development Plans (IDP), and she never completed or submitted an IDP;
and (3) the ROI does not include two key witnesses' statements.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
As an initial matter, regarding complainant's argument that the ROI has
errors and omissions, we find that the short-comings cited by complainant
are insufficient to undermine the ROI's utility. We also note that
complainant had a full opportunity to request a hearing before an EEOC
AJ in order to supplement the evidentiary record, but elected not to
do so. Therefore, we will proceed to analyze the merits of complainant's
complaint.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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). He
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, 143 (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).
Claim 1
The record reveals that in January 2006, there were two Public Affairs
Specialists working for Ms. JE: complainant and Ms. K, who was at the
GS-13 level with a different position description. According to Ms. JE,
the positions in question did not reflect office's needs. Accordingly,
on January 18, 2006, both complainant and Ms. K underwent a desk audit by
a Department of State Classifier. The desk audit revealed that many of
the duties performed by Ms. K should be performed by the GS-11 position
held by complainant. As a result, complainant's duties were changed,
but not her pay or grade level. Moreover, complainant testified, "I do
not believe that I was treated differently due to my race..." but she
believes that her work was "not valued." As for reprisal, complainant
conceded that she did not suffer reprisal as to claim (1) because at the
time of the desk audit, she had no prior EEO activity. Accordingly,
we find that complainant failed to establish a prima facie case of
race or reprisal discrimination when as a result of the desk audit
her position description changed. While complainant is a member of a
protected class based on her race, she has not shown that the agency's
actions were based on or taken because of racial animus.
Claims 2 through 5
Assuming, arguendo, that complainant has established a prima facie case,
we find that the agency articulated legitimated, non-discriminatory
reasons for its actions. Specifically, Mr. EW explained that he denied
complainant's training request for three courses, entitled, "Better Office
English," Public Diplomacy Basics," and "Public Diplomacy Programming,"
for two reasons. First, he stated that prior to receiving complainant's
training request, he requested complainant attend on-the-job training
(OJT) on the new duties assigned to the GS-11 position description.
Mr. EW stated that he wanted complainant to complete OJT prior to any
other training because it was training on major duties of her job.
Second, he stated that complainant did not consult with him about what
courses might be appropriate and she did not explain how the courses
she requested were relevant to her job.
As to claim (3), Mr. EW testified that he did not approve complainant's
request for sick leave because her sick leave balance was in a deficit
position. The record reveals that management gave complainant the option
of taking Leave without Pay (LWOP) or annual leave to cover the requested
sick leave. The record further reveals that complainant resubmitted
the leave request for LWOP, which Mr. EW approved.
As to claim (4), Mr. EW testified that he issued complainant a Letter
of Warning because she refused, both orally and in writing, to perform
the work assigned to her in her new job description. Complainant also
refused to attend some staff meetings, and when she did attend meetings,
showed disrespect toward Mr. EW and others by reading throughout
the meeting. Mr. EW also testified that complainant questioned his
authority repeatedly, that she was frequently tardy and absent from the
office without notifying him, and that she never submitted requests for
leave for the time she missed.
As to claim (5), Mr. EW alleged that he rated complainant's performance
as "unacceptable," because her performance in two of the three critical
elements was indeed unacceptable. Specifically, the critical elements of
concern were media and public contact; scheduling speaking engagements for
the Assistant Secretary; and recruiting speakers from the speaker's bureau
for speaking engagements. Complainant was rated "Fully Satisfactory"
in two-non-critical elements. However, the record reveals that after
Mr. EW evaluated complainant, he learned that he should not have written
the evaluation because he had not supervised her for at least 120 days.
Accordingly, complainant's evaluation was rescinded. Moreover, the
record shows that neither the LOW nor the evaluation would be associated
with complainant's records and would not be used as a basis for future
personnel actions against her.
The Commission is not persuaded, by a preponderance of the evidence
in this record, that the agency's stated reasons are mere pretext for
discriminatory animus. We find that complainant failed to rebut the
agency's articulated legitimate, non-discriminatory reasons for its
action and to show pretext. Therefore, complainant failed to show,
by a preponderance of the evidence that she was discriminated against
on the basis of race or reprisal.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency decision.
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
August 19, 2009
Date
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0120080995
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080995
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