01974901
02-10-2000
Lydia Velasquez, Complainant, v. Janet M. Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Lydia Velasquez v. Department of Justice
01974901
February 10, 2000
Lydia Velasquez, )
Complainant, )
)
v. )
) Appeal No. 01974901
Janet M. Reno, ) Agency Nos. I-94-6376
Attorney General, ) I-94-6424
Department of Justice ) I-94-6508
(Immigration and Naturalization )
Service), )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the bases of national origin (Hispanic), 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. and the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791, et seq.<1> Complainant's claims
of discrimination, as restated by the agency, were as follows;
(1) she was required to submit a statement from her physician for less
than three days of sick leave contrary to similarly situated employees;
(2) she was not provided an opportunity to work overtime contrary to
similarly situated employees;
(3) her supervisor required that she remove her out-of-state tags and
replace them with Georgia tags while he retained his out-of-state tags;
(4) she was not made aware of and provided an opportunity to apply for
vacancy announcements;
(5) on October 13, 1993, she was subjected to humiliation during a
staff meeting;
(6) on December 6, 1993, she was denied assistance in administering a
test to Class 149;
(7) on December 8, 1993, her request for advanced leave was denied;
(8) on January 7, 1994, she was assigned a project contrary to others
in her unit;
(9) on January 18, 1994, she received a memo which she alleges contained
misinformation;
(10) on February 3, 1994, her request for training was denied;
on February 15, 1994, a detail to Tucson was rescinded;
(12) on June 13, 1994, the Acting Chief of the Language Department moved
into an office next to hers;
(13) on July 11, 1994, furniture was removed and replaced from her office;
(14) on July 29, 1994, she was asked by the Chief and Deputy Chief of
the Academy why she had not attended a staff meeting;
(15) she was scheduled to teach four hours a day during her last week
at the Academy; and
(16) she did not receive mail sent to her by the EEO Office in Washington.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
BACKGROUND
The record reveals that for the two-year period ending in August, 1994,
complainant was employed as a contract Spanish Language Trainer (GS-9)
with the Immigration Officer Academy at the Federal Law Enforcement
Training Center in Glynco, Georgia. Toward the end of the term of
complainant's contract, a variety of disputes arose between complainant
and her supervisors. These disputes precipitated the filing by
complainant of three separate formal EEO complaints on January 20,
1994,<2> April 11, 1994<3> and August 24, 1994.<4> The agency dismissed
the April 11, 1994 complaint but accepted the remaining complaints for
investigation. Complainant appealed the dismissal of the April 11,
1994 complaint. The Commission reversed in part, remanding several
issues for investigation. Velasquez v. Department of Justice, EEOC
Appeal No. 01952024 (October 30, 1995).
Complainant requested a hearing before an Administrative Judge but later
withdrew that request. Ultimately, the agency issued a single final
decision addressing the pending issues as outlined above.
The FAD found that complainant had failed to prove any of her claims
of discrimination. From the FAD, complainant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993), the Commission agrees with
the agency that complainant failed to prove discrimination. We will
address briefly each of complainant's sixteen claims. We also discuss
whether these allegations, when considered together, make out a claim
of hostile-work-environment harassment.<5>
Claim (1) - Sick Leave Documentation
The record shows that management officials had reason to believe
complainant was abusing sick leave. Witnesses testified that complainant
was the only employee who regularly requested sick leave while on
annual leave. This is a legitimate, nondiscriminatory reason for the
agency's action. Complainant has failed to show it to be a pretext
designed to conceal discriminatory animus.
Claim (2) - Denial of Overtime
The evidence shows that, contrary to her contentions, complainant was
informed at the same time as other employees about the availability of
overtime work. Accordingly, complainant has not established a prima
facie case of discrimination with respect to this claim.
Claim (3) - Out-of-State Automobile Tags
Complainant proved that her supervisor instructed her to replace her
Texas automobile tags with Georgia tags and that the supervisor failed
to replace his own out-of-state tags. These facts do not raise an
inference of discrimination. Complainant and her supervisor are not
"similarly situated" as that term is used in McDonnell Douglas, supra.
The Commission has held that employees are similarly situated when
they (1) are subject to the same supervisor; (2) perform the same job
function; (3) are on the same tour of duty; and (4) are disciplined
during approximately the same period. O'Neal v. U. S. Postal Service,
EEOC Request No. 05910490 (July 23, 1991). Here, complainant and her
supervisor were subject to different supervisors. They were, therefore,
not similarly situated. Accordingly, complainant has not established
a prima facie case of discrimination with respect to this claim.
Claim (4) - Vacancy Announcements
Complainant's claim that she was not made aware of or given an opportunity
to apply for job vacancies is not borne out by the evidence. The record
shows that job vacancies were posted in a central location, equally
accessible to all. Complainant's contention that her busy schedule
precluded her from visiting the office where the vacancy announcements
were posted strains credulity, especially in view of the evidence that
complainant never attempted to telephone anyone in that office to obtain
vacancy information. Accordingly, complainant has not established a
prima facie case of discrimination with respect to this claim.
Claim (5) - Humiliation at Staff Meeting
Complainant asserts that she was "humiliated" at a staff meeting
when fellow employees made disparaging remarks about the agency's
Hispanic Heritage Month Celebration which she had helped organize.
Complainant was particularly distressed by co-workers' intimations that
ethnically oriented special emphasis programs such as Hispanic Heritage
Month discriminated against non-minorities. In addition, complainant
notes that the staff members at this meeting discussed a printed flyer
publicizing a luncheon and bearing the handwritten notation: "by KKK."<6>
We address the merits of this claim in connection with our analysis of
complainant's harassment claim, infra.
Claim (6) - Failure to Assist with Testing
Complainant alleges that her supervisor refused to assist her in
administering a test to her students while, on another occasion, he
had helped a White male instructor administer a test. Complainant has
failed to show that the circumstances of the two situations were similar.
Complainant's supervisory testified that he did not assist complainant
with the test because he was busy at the time and unable to do so.
Complainant has offered no evidence to refute her supervisor's testimony.
Accordingly, complainant has not established a prima facie case of
discrimination with respect to this claim.
Claim (7) - Denial of Leave
The evidence shows that complainant was denied advanced leave because,
under the applicable regulations, she was not eligible for advanced leave.
This is a legitimate, nondiscriminatory reason for the agency's action.
Complainant has failed to show it to be a pretext designed to conceal
discriminatory animus.
Claim (8) - Project Assignment
Complainant asserts that she was discriminated against when her supervisor
assigned a special project to her but failed to assign a special project
to any other instructor. The record shows that complainant was assigned a
project because she, unlike other instructors, was not scheduled to teach
during the period when the project was to be performed and because she
had not volunteered for a project as had most of her fellow instructors.
This is a legitimate, nondiscriminatory reason for the agency's action.
Complainant has failed to show it to be a pretext designed to conceal
discriminatory animus.
Claim (9) - Memo Containing False Information
Complainant contends that a memorandum from a supervisor to a co-worker
contained false information concerning complainant. Specifically, the
memorandum stated that complainant had been assigned by the supervisor
to assist the co-worker on a particular assignment. Complainant contends
that she was never given the particular assignment and for the supervisor
to state otherwise was an act of discrimination. We find, based on a
review of the record, that complainant had been given the assignment
in question and that the memorandum is accurate in this respect.
Accordingly, complainant has not established a prima facie case of
discrimination with respect to this claim.
Claim (10) - Training Denied
The evidence shows that complainant was not selected for training because
she was a temporary, contract employee. The employee who was selected
for training was a permanent employee. The agency stood to benefit
more from providing training to a permanent employee than to a temporary
employee who was likely soon to leave the agency. This is a legitimate,
nondiscriminatory reason for the agency's action. Complainant has failed
to show it to be a pretext designed to conceal discriminatory animus.
Claim (11) - Tucson Detail Denied
Complainant was not chosen for a detail in Tucson, Arizona in which she
had expressed an interest. The person selected for the detail was a
permanent employee. The agency may properly prefer a permanent employee
over a temporary employee such as complainant. This is a legitimate,
nondiscriminatory reason for the agency's action. Complainant has failed
to show it to be a pretext designed to conceal discriminatory animus.
Claim (12) - Use of Neighboring Office
Complainant contends that a supervisor was moved into the office
next to hers on the first floor in order to facilitate monitoring of
her activities by management. The record shows that access to the
upper floors in complainant's building required the use of stairs.
The supervisor in question had back and foot injuries which made climbing
stairs difficult. The supervisor was moved into the office next to
complainant's because it was the only available office on the first floor.
This is a legitimate, nondiscriminatory reason for the agency's action.
Complainant has failed to show it to be a pretext designed to conceal
discriminatory animus.
Claim (13) - Removal of Furniture
Complainant alleges that she was discriminated against when certain
furniture was removed from her office and replaced with other furniture.
Complainant does not contend that the new furniture was inferior to the
old or that the change in furniture interfered with the performance of
her job duties. We address the merits of this claim in connection with
our analysis of complainant's harassment claim, infra.
Claim (14) - Inquiry about Failure to Attend Meeting
Shortly before the end of complainant's two-year term of employment,
her supervisor gave her permission to be absent from a staff meeting
attendance at which normally would have been mandatory for complainant.
Soon after the meeting two higher level supervisors inquired of
complainant why she had not been at the meeting. Complainant explained
that because of her imminent departure, she had been excused from
attendance. Complainant was not reprimanded or disciplined for her
failure to attend. We address the merits of this claim in connection
with our analysis of complainant's harassment claim, infra.
Claim (15) - Scheduling During Final Week of Work
Complainant alleges that she was discriminated against when she was
scheduled to teach during her final week of employment, while other
instructors had been permitted not to teach during the final week
before their departures from the school. The evidence shows that
complainant was required to work because another instructor became sick
and no instructor other than complainant was available to substitute
teach. Other instructors had been relieved of teaching duties during
their last weeks only when the availability of staff permitted it.
This is a legitimate, nondiscriminatory reason for the agency's action.
Complainant has failed to show it to be a pretext designed to conceal
discriminatory animus.
Claim (16) - Misdirected Mail
Complainant contends that the agency discriminated against her by failing
to forward mail sent to her by the EEO office. There is no evidence in
the record indicating that the failure of the mail to reach complainant
was in any way attributable to the agency's actions or inaction.
Accordingly, complainant has not established a prima facie case of
discrimination with respect to this claim.
HARASSMENT
Although we have concluded that none of complainant's individual claims of
discrimination have been proven, there remains the question of whether,
when considered together, the agency's actions subjected complainant to
harassment of such intensity as to create a hostile work environment.
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. McKinney
v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). However, in order
for harassment to be considered conduct in violation of Title VII,
it must be pervasive. Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th
Cir. 1987). The conduct in question is evaluated from the standpoint of
a reasonable person, taking into account the particular context in which
it occurred. Highlander v. K.F.C. National Management Co., 805 F.2d 644
(6th Cir. 1986). The Commission notes that, unless the conduct is very
severe, a single incident or group of isolated incidents will not be
regarded as discriminatory harassment. Walker v. Ford Motor Co., 684
F.2d 1355, 1358 (11th Cir. 1982). In order to support a finding of a
hostile work environment, more than a few isolated incidents of enmity
must have occurred. Hicks, 833 F.2d at 1415. There must be a steady
barrage of opprobrious comments and not a casual comment or accidental
or sporadic conversation, in order to trigger equitable relief. Snell
v. Suffolk Co., 782 F.2d 1094 (2d Cir. 1986).
Here, complainant's claims, when considered together, do not establish
a pattern of oppressive conduct. Rather they appear to us to involve a
series of unrelated disagreements between complainant and her supervisors
about various aspects of her employment. With the exception of the
staff meeting described in claim (5), there was no overt expression in
the work place of hostility toward female or Hispanic employees.
With respect to the staff meeting where complainant felt herself to
have been humiliated, we cannot find on the record before us that the
incident was sufficiently severe to constitute discriminatory harassment.
Complainant does not contend that any ethnically or sexually derogatory
insults were uttered at the meeting. The gravamen of complainant's
complaint is that she was offended by her co-workers expressing
disagreement with the agency's policy of conducting special emphasis
programs concerning minority groups. Complainant was also offended by
a discussion concerning whether the term "Hispanic" described a race or
a culture.
In our view, neither the subject matter of this discussion nor the
manner in which the discussion was conducted would have been regarded
by a reasonable person as so patently offensive as to support a finding
that complainant had been subjected to a hostile work environment.
This finding is supported by the testimony of one Hispanic employee who
attended the meeting that he did not take offense at the comments to which
complainant objects. He testified further that none of the other Hispanic
employees at the meeting appeared to be offended by the discussion.
Finally, there is the matter of the flyer bearing the handwritten
notation "by KKK." see footnote 6, supra, which was also discussed at
the staff meeting. There is no evidence that any of the participants
in the meeting, or indeed any employee of the agency, was the author
of the flyer or of the handwritten notation. Nor is there evidence
that any supervisory personnel knowingly permitted copies of the flyer
bearing the handwritten notation to be distributed or displayed at any
agency facility. In addition, as is discussed above, the meaning of the
"KKK" notation is unclear. Although it does appear that agency management
should have been more thorough in its investigation of the circumstances
surrounding the posting of this flyer, on this record we cannot find
that the existence of the flyer, taken together with the other matters
raised by complainant, was sufficiently severe and pervasive to sustain a
finding that complainant had been subjected to a hostile work environment.
CONCLUSION
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 (3O) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (2O) 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:
2/10/00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
2/10/00
Date
__________________________
Equal Employment Assistant
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.
2Agency no. I-94-6376.
3Agency no. I-94-6424.
4Agency no. I-94-6508.
5In the multiple documents complainant has submitted in support of her
appeal, she has delineated more than 60 separate "issues," some of which
deal with matters not raised in the formal complaints which give rise
to this appeal. Complainant is advised that if she wishes to pursue,
through the EEO process, these additional claims she raised for the first
time on appeal, she shall initiate contact with an EEO counselor within 15
days after she receives this decision. The Commission advises the agency
that if complainant seeks EEO counseling regarding the new claims within
the above 15 day period, the date complainant filed the appeal statement
in which she raised these claims with the agency shall be deemed to be
the date of the initial EEO contact, unless she previously contacted
a counselor regarding these matters, in which case the earlier date
would serve as the EEO counselor contact date. Cf. Alexander J. Qatsha
v. Dept. of the Navy, EEOC Request No. 05970201 (January 16, 1998).
6The text of the computer-printed flyer was a follows: "LET'S HAVE LUNCH
AT THE EL POTRO RESTAURANT, 11:00 AM OCTOBER 15, 1993, JUST A GET-TOGETHER
TO INFORMALLY CLOSE OUT THE HISPANIC HERITAGE MONTH, SEATING IS LIMITED
IN THIS RESTAURANT, SO COME EARLY (THIS LUNCHEON IS NOT SPONSORED
BY THE HISPANIC HERITAGE COMMITTEE." In the top and bottom margins
of the flyer the handwritten notation "by KKK" appears. The precise
message meant to be conveyed by the defacer of this document is unclear.
We are unable to determine from the record whether, by employing these
inflammatory initials, the defacer intended to endorse discrimination
against minorities or to respond to the flyer's implicit criticism of
the Hispanic Heritage Committee by denouncing the flyer's author.