0120113622
08-19-2013
Lizbeth L. Lafferty, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
Lizbeth L. Lafferty,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120113622
Agency No. BIA090388
DECISION
On July 18, 2011, Complainant filed an appeal from the Agency's June 17, 2011, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Education Line Officer at the Agency's facility in Snelling, Minnesota.
On June 11, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when:
1. Complainant's supervisors failed to support her attempts to manage a male subordinate and from the fall of 2007 through February 23, 2009, the Agency deliberately undermined her credibility with her subordinates; and
2. on February 23, 2009, she was permanently reassigned from her supervisory position as an Education Line Officer in Snelling, Minnesota, to the position of Special Assistant, Deputy Director of School Operations, Associate Deputy Director, Navajo, located in Window Rock, Arizona.
At the conclusion of the investigation into the complaint, the Agency provided Complainant 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 the Agency subjected her to discrimination as alleged.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973. For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The Agency may then rebut any initial inference of discrimination raised by articulating legitimate, non-discriminatory reasons for the events at issue. 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 Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming that Complainant satisfied the above elements to establish a prima facie case of sex discrimination in these matters, we find that the responsible Agency management officials articulated legitimate, nondiscriminatory reasons for the decisions made.
Complainant contends she had difficulty supervising a particular employee (Employee) (male) who was unhappy when he was not selected to the Education Line Officer position for which Complainant was the successful candidate. Complainant contends that Employee was unwilling to keep her updated about his work and resisted efforts to hold him accountable for his performance and conduct. Complainant further alleges that Employee regularly challenged her authority and refused to follow a set of policies and procedures she set forth in order to clearly delineate everyone's roles and responsibilities in the office. According to Complainant, when she informed her first line supervisor (Supervisor) of the problems with Employee, Supervisor created a detail assignment for Employee to separate him from the office. Complainant further alleges that before Employee left for the detail, he became upset, and made physical threatening gestures to her causing her to seek EEO assistance. Complainant contends that despite her advising Supervisor of her problems with Employee, he failed to take action against Employee and, in fact, had discussions with Employee outside of her presence without advising her of the content of those discussions. Complainant alleges that the actions of Supervisor undermined her authority. Complainant contends further that Supervisor failed to support her efforts to manage Employee until the situation escalated in January 2009 and Employee was given a written reprimand which Complainant believed was too lenient.
Complainant's Supervisor (female) testified that she took action each time Complainant advised her of a problem with Employee. Specifically, Supervisor indicates that she changed the locks on Complainant's office door when she advised Supervisor that Employee entered her office when she was not present. Supervisor provided a mediator to Complainant in order to assist her in communicating with Employee and improve overall office communication. In addition, Supervisor indicates that Employee was reprimanded twice for his failure to follow directions, and that she offered Complainant personal advice about communicating with Employee. Complainant's supervisor also indicated that she rarely spoke directly with Employee and when she did, Supervisor referred the matter to Complainant as the office supervisor. She said that Complainant had not previously advised her of many of the incidents and concerns identified in her complaint, including her allegation that Employee physically threatened her. She said that whenever she was made aware of a particular incident with Employee, she responded to Complainant's concerns and denied doing anything to undermine her authority.
Complainant further alleges that the Agency's decision to reassign her to a position in the Associate Deputy Director (ADD) Navajo Office in Window Rock, Arizona, was directly related to her difficulties in supervising Employee. Specifically, Complainant contends that her reassignment was used as punishment for having conflicts with Employee. Complainant indicates that she was willing to take an Education Line Office position in Crow Creek, South Dakota, a Special Assistant position in the South and Eastern States' Office or position as a Tribal Liaison with the North and South Dakota Tribal Schools. However, according to Complainant, none of these options was offered by the Agency.
According to the Agency management witnesses, Complainant was reassigned because there was a need for a Special Assistant to the ADD Navajo. According to management, Complainant possessed the knowledge and expertise to fill the position. Witnesses stated that Complainant had knowledge of the schools, experience with Navajo tribes, and had organizational skills and a straightforwardness that was well respected within the Agency and was needed in the new position. Complainant's supervisors said they considered Complainant's suggestions for alternate positions, but none were available. The Agency contends that Complainant had no objection to a reassignment, if it were to a location she desired. Ultimately, the record indicates that Complainant was removed from the Agency, because she failed to report for duty in Window Rock, Arizona.1
Upon review, we find that nothing in the record that reflects that management's non-discriminatory explanations was pretext for discrimination. Based upon the record before us, we find that management efforts were made to correct Employee's behavior when Complainant made her supervisor aware of it. Moreover, there is nothing to suggest that the reassignment decision was based on any discriminatory animus toward Complainant's protected class.
On appeal, Complainant requests a hearing on her complaint. However, as required by our regulations, Complainant was offered an opportunity to request a hearing at the conclusion of the investigation, but declined to do so. See 29 C.F.R. � 1614.108(f). She has proffered no reason for this failure, and we see no reason to remand the complaint for a hearing at this point.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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, 2013
__________________
Date
1 We note that Complainant does not challenge the Agency's removal action in this complaint.
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0120113622
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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