Lisa Lenches-Marrero, Appellant,v.Janet Reno, Attorney General, U.S. Department of Justice (Federal Bureau of Investigations), Agency.

Equal Employment Opportunity CommissionFeb 2, 2000
01973247 (E.E.O.C. Feb. 2, 2000)

01973247

02-02-2000

Lisa Lenches-Marrero, Appellant, v. Janet Reno, Attorney General, U.S. Department of Justice (Federal Bureau of Investigations), Agency.


Lisa Lenches-Marrero v. U.S. Department of Justice

01973247

February 2, 2000

Lisa Lenches-Marrero, )

Appellant, )

) Appeal No. 01973247

v. ) Agency No. F-95-4690

)

Janet Reno, )

Attorney General, )

U.S. Department of Justice )

(Federal Bureau of Investigations), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of sex (female) and reprisal (prior EEO activity), in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.<1> Complainant alleges she was discriminated against when:

(1) on February 9, 1995, her supervisor accused her of not working

Administratively Uncontrollable Overtime (AUO); and (2) on February 10,

1995, her supervisor mentioned to her co-workers that complainant was

keeping a "book on them." The appeal is accepted in accordance with

EEOC Order No. 960.001. For the following reasons, the agency's decision

is AFFIRMED.

The record reveals that during the relevant time, complainant was employed

as a Special Agent, at the agency's Newark, NJ Division C-9 Squad.

Complainant alleged that on February 8, 1995, she left the office at

5:25 p.m. When complainant arrived at work the following day, she found

a note from her supervisor (female) which read, "Lisa, See Me, Lisa,"

and the times 5:00 p.m., 7:00 a.m. and 7:35 a.m. were also written on

the note, indicating the times that the supervisor had attempted to get

in contact with complainant.

On February 9, 1995, complainant's supervisor spoke with complainant and

told her that she had conducted a poor investigation in December 1994,

and that she was not, "pulling her own weight". Complainant alleged that

the supervisor also accused her of leaving work early, and not observing

her Administratively Uncontrollable Overtime (AUO).<2> As a consequence,

complainant alleged that the supervisor then required her to sign in

and out of the office from then on. Complainant averred that she then

told the supervisor that she had seen the supervisor herself sign in at

incorrect times.

The following day, complainant alleged that while she was in the hallway

at work, her office-mate yelled to her that Person A was on the phone.

Complainant averred that Person A was one of the three EEO Counselors

at the Newark Division, and that she rarely had contact with Person A.

Complainant alleged that Person A was returning her call made the prior

day, when she decided to file an EEO complaint regarding the matters

in the instant complaint. Complainant alleged that fifteen minutes

later, the supervisor called complainant's office-mate (SA # 1)(male)

into her office and instructed him to sign in and out every day because

complainant was "keeping a book" on him. Soon after, another Special

Agent (SA #2)(male) came into complainant's office and reported that the

supervisor had also instructed him to sign in and out every day because

complainant was "keeping a book" on him. Complainant alleged that these

comments were made to SAs #1 and #2 in reprisal for her EEO contact.

Complainant alleged that the supervisor must have heard SA #1 tell her

that Person A was on the phone, and must have known that she contacted

him because of an EEO matter. Furthermore, she stated that she had

advised the supervisor the prior day that she would be resolving the

matter through "official channels."

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on April 26, 1995. In her

complaint, complainant also referenced other acts of discrimination by

the supervisor. On June 13, 1995, the agency accepted allegations (1)

and (2), as listed above, for investigation. Furthermore, the agency

acknowledged that the complaint also contained several allegations

involving harassment and disparate treatment, for which complainant had

not sought timely EEO contact.

The agency did find, however, that the other allegations involved

actions by the supervisor which may be related to those matters accepted

for investigation. Therefore, the agency stated that the following

issues would be "investigated as background to the extent that they are

relevant to the accepted issues": (a) her supervisor refused to allow

her Administrative Leave in August 1993; (b) her supervisor refused to

allow her training on conducting an investigation in squad violations

until July 1994; (c) her supervisor refused to allow her Annual Leave

in October 1994; (d) her supervisor requested a revised memorandum for

each file case reassignment on complainant's last day at work prior to

her maternity leave; (e) her supervisor made demeaning comments to her

relating to her condition during her pregnancy and maternity leave;

(f) her supervisor assigned her the task of organizing and collecting

money for bridal showers, flowers for sick employees, and buying

and wrapping gifts, as well as sending cards around for signatures;

(g) her supervisor constantly left her sarcastic and accusatory notes

regarding her whereabouts and closely monitored her work schedule; and

(h) her supervisor left her notes on her desk requesting to see her

after 5:00 p.m. At the conclusion of the investigation, complainant

requested that the agency issue a final agency decision.

Complainant averred in her affidavit that she believed her supervisor

accused her of not working her AUO because she dislikes her because she

is female. Complainant's affidavit reveals that she believes the has

felt this way since complainant was transferred to Newark from San Juan,

while she was then seven months pregnant. According to complainant's

affidavit, the supervisor favored certain special agents, most of whom

were male. Complainant did affirm, however, that there was a female

which the supervisor favored, but that was because the female never

questioned the supervisor, and acted subservient towards the supervisor.

With respect to the allegations accepted for background, complainant

remarked that when she first arrived at the Newark Division, the

supervisor looked her up and down, scoffed, and then rolled her eyes.

Complainant also averred that the supervisor denied her administrative

leave and training. Furthermore, in October 1994, the supervisor denied

complainant annual leave due to an inspection that was taking place

at the facility. However, the supervisor did approve leave for a male

special agent during October 1994.

Moreover, complainant alleged that during her pregnancy, the supervisor

made demeaning comments towards her, such as, on one occasion, the

supervisor gave complainant a limited duty medical form, and instructed

complainant to fill it out. When complainant questioned why this form was

needed, the supervisor remarked, "well, you can't do anything, can you?"

Complainant averred that the supervisor once pressured complainant to

come out with co-workers for drinks and stated, "well, you can have a

Coke or something." Furthermore, when complainant was home on maternity

leave and alerted the supervisor that she encountered an individual

who could provide information to the FBI, the supervisor remarked,

"see that, even when you're just sitting around at home doing nothing,

things pop up for work."

Complainant averred that on October 7, 1994, which was the last day

before her maternity leave was to begin, the supervisor instructed

complainant to redo case assignment sheets in a detailed format, which

was not similarly done for other male and female agents who left work.

Complainant remarked that she always had to alert the supervisor to her

whereabouts, and that the supervisor always left her notes, even though

she must have been aware of complainant's whereabouts.

Also contained in the record are affidavits from some of complainant's

co-workers. SA #1 (male) corroborated complainant's statement about

the notes left by the supervisor, and stated that he has seen the

supervisor put notes on complainant's desk in an attempt to locate her.

Furthermore, he opined that the supervisor is harder on women than men,

and cites examples that he has heard from some of the other female SA's,

including complainant. He averred that the supervisor did tell him that

complainant was "keeping book" on everyone, but that he was unaware if

it was due to complainant's EEO contact.

SA #2 (male) also averred that the supervisor told him complainant was

"keeping book" on everyone, but he did not witness the events relating

to allegation (1). He opined that the supervisor favors certain male

and female employees, such that there was a "Team A" and "Team B."

Complainant, SA #1, SA #2, as well as two other female SA's were

considered part of Team B. Although SA#2 was required to tell the

supervisor where he was at all times, he still believed that female

agents got the worst treatment from the supervisor. According to SA

#2's affidavit, only one female agent was treated well by the supervisor,

and he believed that was because she was "career oriented."

Two other female SAs submitted affidavits in support of complainant's

claim. (SA# 3 and SA #4). SA #3 testified that she did not witness

the incidents alleged in the instant complaint, but did provide

information on the disparate treatment she received from the supervisor.

Specifically, she averred that she was discriminated against by the

supervisor because of her maternity leave, and because of her part time

status due to her wish to raise her infant son. She stated that she was

denied the use of an agency car, and received harassing phone calls from

the supervisor while home on sick leave. In sum, she remarked that the

supervisor treated her differently than other male and female employees.

She believes the female treated well by the supervisor is treated that

way because she took less maternity leave time than was allotted.

SA #4 averred that she did not witness the above events, but did believe

that the supervisor treats her worse than male agents. Specifically,

she stated that the supervisor spoke to her in a patronizing tone,

denied her annual leave, sent her harassing notes, and instructed her

to inform her of her whereabouts at all times. Finally, she ultimately

requested a transfer out of the office due to the treatment she received

from the supervisor.

There is also an affidavit in the record from the supervisor's secretary

(female). The secretary described the supervisor as being tougher on

females than males, with the exception of one female SA. According to

the secretary, the supervisor was always looking for complainant,

as well as SA #3 and SA #4. She opined that the supervisor was very

business-like, and was not personable. The secretary believed that the

supervisor behaved this way because she, "needed or wanted to prove her

self as a female supervisor." She denied ever receiving poor treatment

by the supervisor.

On March 5, 1997, the agency issued a final decision. In its FAD, the

agency concluded that complainant failed to establish a prima facie case

of discrimination in that she failed to show how allegation (1), which

alleged the supervisor accused her of not working her AUO, constituted

an adverse action. Assuming, arguendo, that complainant did suffer an

adverse action, the agency found that complainant failed to show how the

supervisor's statement that she was not completing her AUO, was based on

complainant's sex. Furthermore, the agency found that the supervisor had

articulated legitimate, nondiscriminatory reasons for her actions, namely,

that in the past, she had trouble finding complainant, and consequently,

she would leave a note for her. Thus, the agency found that the record

suggested that the supervisor left the notes for complainant because she

believed she was not observing her AUO. The agency also found that the

record indicated the supervisor left notes for complainant because she

was not satisfied with complainant's work performance.

With respect to complainant's background evidence of discrimination, the

agency found that as a whole, the allegations failed to establish that

the supervisor treated complainant any differently than other employees

because of her sex. Although the agency did note the testimony of

complainant's witnesses, the agency found that the most likely reason

for this monitoring was because the supervisor believed they were poor

performers.

In its decision, the agency found that with respect to complainant's

background allegations, which could be construed as alleging a hostile

work environment, complainant failed to allege actions which were

severe or pervasive enough to alter the conditions of her workplace.

Furthermore, the agency found that the evidence did not reveal that the

supervisor was motivated by a discriminatory animus towards complainant's

sex or due to her pregnancy.

With respect to complainant's second allegation, that which alleged

reprisal discrimination when her supervisor told her co-workers

that complainant was "keeping a book on them," the agency found

that complainant had not suffered a "material adverse change" as a

consequence of the supervisor's actions. Furthermore, the agency found

that complainant had not proven that a causal connection existed between

complainant's EEO contact and the supervisor's comment to complainant's

co-worker's. In fact, the agency found that complainant failed to

prove that the supervisor was aware of complainant's EEO contact when

she made the comment. In sum, the agency found that complainant was

not discriminated against as alleged.

On appeal, complainant contends that the agency failed to conduct an

adequate investigation. Complainant also provided computer printouts

of her performance ratings for the past years, which show she received

"superior" ratings, including period during which she was supervised by

the supervisor. Furthermore, complainant provided the performance ratings

of SA # 1, SA #2, SA #3 and SA #4, which revealed performance ratings from

"fully successful" to "exceptional." In response to complainant's appeal,

the agency argues that complainant failed to provide evidence of gender

discrimination. The agency argues that complainant had not shown that

the agency had affected a term, condition or privilege of employment.

Also, it contends that the supervisor took the above actions in response

to her perception of complainant's performance. The agency requests

that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd

545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation

cases), the Commission agrees with the agency that complainant's two

allegations fail to state a claim which affected a term, condition or

privilege of employment. In conjunction with complainant's background

evidence, we also find that complainant failed to prove that the agency's

reasons for its actions were a pretext for discrimination.

Specifically, the supervisor testified that she spoke with complainant

about her AUO and left notes for complainant because of her personal

observations that complainant did not accurately report her AUO.

The record is not disputed that the supervisor did the same for both

SA #1 and SA #2 (both males). Although the evidence of division in the

office suggests that complainant and other SA's may have been treated

differently by the supervisor, we find insufficient evidence that

proves that this was because of complainant's sex and/or pregnancy.

Specifically, we note that the evidence reveals that the supervisor

treated some female special agents, as well as the secretary, favorably.

Also, the affidavit of the Assistant Special Agent in Charge (male),

who was the supervisor's first line supervisor, averred that both

males and females complained about the treatment they received from the

supervisor. This evidence tends to show that factors other than sex were

involved in this treatment. Although the evidence reveals an acrimonious

relationship existed between complainant and her supervisor, complainant

has not persuaded us that such treatment was because of her gender.

Rather, the evidence reveals that complainant's time and attendance

and work ethic contributed to this relationship. The Commission 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.

Furthermore, we find that complainant failed to prove a prima facie case

of discrimination on the basis of reprisal in that she failed to show

that the supervisor was aware of her EEO activity when she told SA #1

and SA #2 that complainant was "keeping a book" on them. Furthermore,

we find that this allegation does not constitute an adverse action.

Assuming complainant established an inference of discrimination on the

basis of reprisal, we find that she failed to show that the agency's

reasons for its actions were a pretext for discrimination. Accordingly,

we find that complainant was not discriminated against on the basis

of reprisal.

The agency also examined complainant's complaint as one which alleged

harassment. The harassment of an employee that would not occur but

for the employee's race, color, sex, national origin, age, disability,

or religion is unlawful if it is sufficiently patterned or pervasive.

Wibstad v. United States Postal Service, EEOC Appeal No. 01972699

(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39

(D.C. Cir. 1985)). In determining that a working environment is hostile,

factors to consider are the frequency of the alleged discriminatory

conduct, its severity, whether it is physically threatening or

humiliating, and if it unreasonably interferes with an employee's work

performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance

on Harris v. Forklift Systems. Inc. at 3, 6. The Supreme Court stated:

"Conduct that is not severe or pervasive enough to create an objectively

hostile work environment - an environment that a reasonable person would

find hostile or abusive - is beyond Title VII's purview." Harris, 510

U.S. at 22 (1993).

As such, we also find that the evidence is insufficient to prove that the

actions alleged by complainant rose to the level of that which created a

hostile work environment. Specifically, complainant's allegations concern

notes, accusations about overtime use, denial of leave, case reassignment

sheets, and comments made by the supervisor. We note that the supervisor

denied making the statements regarding complainant's pregnancy, and

denied requiring complainant to alert her to her whereabouts at all

times. Although the evidence reveals that the supervisor left notes to

complainant, we do not find such action was severe or pervasive such that

it would alter complainant's work conditions. While the supervisor's

conduct may have offended complainant, there is insufficient evidence in

the record to support a finding that her actions constituted harassment,

or that they were motivated by a discriminatory animus. Rather, the

affidavits indicate that an acrimonious relationship existed between

complainant and her supervisor. Complainant failed to show that this

relationship was related to her gender or prior EEO activity.

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 FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 2, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ __________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to

all Federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as

amended, may also be found at the Commission's website at WWW.EEOC.GOV.

2AUO is an agency requirement that Special Agents work an average of

109 minutes of overtime per day.