0120090005
01-16-2009
Lunetta Blanks, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Lunetta Blanks,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120090005
Agency No. 0709036
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 19, 2008 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency subjected her to a hostile work
environment on the bases of race (African-American), sex (female), color
(light brown), age (43), and reprisal (for prior protected EEO activity)
with respect to the assignment and scrutiny of her work, leave issues
and the denial of her request for a new supervisor.
Complainant is a GS-11 Investigator Benefits Advisor with the Employee
Benefits Security Administration in the Los Angeles Regional Office.
Complainant's allegations of a hostile work environment primarily involve
actions by her supervisors including the assignment of cases; instructions
regarding her work; instructions regarding leave, including the use of
advanced sick leave and of leave under the Family and Medical Leave Act;
and the failure to be removed from her first-line supervisor's (S1's)
team.
There is insufficient evidence in the record, however, to show that
such actions were carried out in a disparate manner or were otherwise
reasonably offensive, abusive, threatening or humiliating. Furthermore,
the record supports the finding that the incidents complained of
were no more than routine management functions. For example, both
S1 and complainant's second-line supervisor (S1) testified that work
assignments were routinely moved or reassigned based on the needs of the
individual employee or the department as a whole. S1 also testified
that he often gave instructions to investigators regarding their work
product. S1 further affirmed that the leave audit was performed due to
complainant's negative sick leave balance but that no disciplinary action,
such as leave restriction, was taken against complainant as a result.
In addition, S1 affirmed that the email regarding the Family and Medical
Leave Act was sent to all employees in his group as a result of a denial
of his request for leave by management and that it was unrelated to
complainant's leave to care for a sick relative.
We note that complainant's allegation that she was assigned more
complex/aged cases than other investigators and had less help than other
investigators is not supported by the record. The record shows that
complainant was assigned two cases (from a former coworker's case-load)
while her co-workers were assigned one. However, the record also shows
that one of the cases assigned to complainant only required a small
amount of work to complete and that this case assignment by S1 was
intended to benefit complainant by increasing her production totals
with minimum effort on her part. Moreover, the record shows that all
investigators, including complainant, had aged cases removed from their
cases loads and reassigned as necessary. In addition, the preponderance
of the evidence supports S1's assertion that complainant did not receive
credit for a Fiscal Year 2006 litigation referral because the referral
was not accepted by the pertinent officials, and therefore could not be
counted as complete.
We also find insufficient evidence in the record to support a finding
of discrimination in the area of performance bonuses. The record shows
that the agency awarded bonuses based on the grade of the employee and
the number of elements exceeded on the employee's performance review.
In addition, the record shows that employees needed at least a "Highly
Effective" rating (i.e., exceed 50% or more of the performance standards)
in order to be considered for a bonus. The responsible management
official for allocating bonuses affirmed that complainant did not
receive a bonus because she was not rated above "Fully Satisfactory."
Moreover, the record shows that no employee with a "Fully Satisfactory"
rating received a bonus.
We find the rest of complainant's allegations also fail to constitute
evidence of severe and/or pervasive hostile behavior and the record
does not support a finding that any employment action was motivated by
complainant's race, color, sex, age, or prior EEO activity.1
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.2
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 tends 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
January 16, 2009
Date
1 The only evidence offered by complainant in support of discriminatory
animus concerns allegations regarding S2's attitude toward
African-Americans in general. Specifically, complainant states that
"[i]t is well known that [S2] does not like Blacks." Complainant also
states that S2 made comments to clerical staff that "Blacks cannot
write and are not smart." S2 denies ever making any racial comment
or that her actions were motivated by complainants' race (or any other
prohibited basis). Moreover, no witnesses (including those identified
by complainant) corroborate complainant's assertion. We also find no
other evidence in the record to corroborate complainant's assertions.
2 For the reasons stated above, we likewise find insufficient evidence
in the record to support a clam of disparate treatment.
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0120090005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090005