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.