01985800
05-30-2000
Margo W. Harvey, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Margo W. Harvey v. Department of Commerce
01985800
May 30, 2000
Margo W. Harvey, )
Complainant, )
)
v. ) Appeal No. 01985800
) Agency No. 96-52-02080
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
On July 24, 1998, Margo W. Harvey (hereinafter referred to as complainant)
filed a timely appeal from the May 18, 1998, final decision of the
Department of Commerce (hereinafter referred to as the agency) concerning
her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Complainant received the agency's decision on June 27, 1998.
The appeal is timely filed (see 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a)))<1>
and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (to be
codified as 29 C.F.R. � 1614.405). For the reasons that follow, the
agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the bases of sex (pregnancy-related) and reprisal with regard to
her performance appraisal and other incidents in 1995.<2>
Complainant filed the instant formal complaint on March 8,
1996. Following an investigation, she was provided a copy of the
investigation report and notified of her right to a hearing before an
EEOC Administrative Judge or an immediate final agency decision (FAD).
Complainant did not respond, and the agency issued its FAD.<3>
Complainant was employed as the Regional Counsel (Attorney-Advisor),
GS-14, in the Austin (Texas) office of the Economic Development Agency
(EDA). Her immediate supervisor (S1), the EDA Chief Counsel, was
located in Washington, D.C. Complainant returned to work on July 31,
1995, following the birth of her baby in June.<4> In her complaint, she
claimed that the agency discriminated against her and harassed her with
regard to the following: her fully satisfactory rating for FY 1995,
three-days notice to meet with S1 in Washington, the Administrative
Officer (AO) moved the law books from a storage room, accusations that
she took files, numerous hang-up calls, not informed that eight files
required review, her office was searched, the AO attempted to force her
way into complainant's office, denied training, offensive cartoons on
the bulletin boards, offensive statements by co-workers, and her door
was closed and office lights turned off after she left.
The agency provided responses to each of complainant's allegations.
S1 stated that she directed complainant to meet with her in Washington,
D.C., for a face-to-face meeting to discuss serious deficiencies in
complainant's performance. S1 also explained that she believed that
a fully satisfactory rating was justified in light of complainant's
overall performance and including, inter alia, legitimate criticisms and
complaints from her co-workers regarding processing of project files.
The AO explained that the decision to move the books was made by the
Regional Director (RD) prior to complainant's maternity leave, that
she was aware of it, and that the books were moved out of the storeroom
into newly-installed shelves. The AO also denied that she attempted to
force her way into complainant's office but that she wanted to show water
damage to visiting officials from the General Services Administration.
The RD explained that locks were not placed on office doors except
pursuant to need; however, complainant received approval for a lock
on her door. The RD also stated the agency had no funds for training.
With regard to complainant's claims about other matters, i.e., the locked
office door, lights left on, hang-up calls, alleged offensive cartoons
and statements and accusations from co-workers, the agency questioned
whether these events occurred, denied that these matters were based on
discrimination, and sought to address her concerns about them, e.g.,
limitations for placing items on the bulletin board.
In her statement on appeal, complainant criticizes the agency's
explanations for its actions and contends that the agency failed
to recognize the pattern of discrimination and harassment against
her. Complainant argues that the acting RD recommended a commendable
rating but S1 downgraded her appraisal, and she disputes S1's evaluation
of her performance of the elements. In its comments, the agency argues
that complainant delayed and failed to cooperate in the investigation
and did not meet her burden of proof.
Harassment Claim
Complainant has alleged that she was subjected to harassment and disparate
treatment based on sex and reprisal. The harassment of an employee
based on his/her 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, 1138-1139 (D.C. Cir. 1985). To prevail
on her harassment claims, complainant must show that she was subjected to
a hostile work environment because of discriminatory factors, i.e., sex or
reprisal. In assessing allegations of harassment, the Commission examines
factors such as 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. Harris v.
Forklift Systems, Inc., 510 U.S 17 (1993). Usually, unless the conduct
is severe, a single incident or group of discrete, isolated incidents
will not be regarded as discriminatory harassment. Walker v. Ford Motor
Co., 684 F.2d 1355, 1358 (11th Cir. 1982). See Bloomer v. Department
of Transportion, EEOC Petition No. 03980137 (October 8, 1999).
With regard to complainant's claims of harassment, based on the record
before us, we find that the weight of evidence shows that the events
and incidents cited by complainant, even if true, did not establish a
pattern of discrimination or were not sufficiently severe to constitute
discriminatory harassment. Complainant did not show that the events
complained of were not based on legitimate factors or were not warranted,
or that the incidents she described were based on sex-based hostile
animus or taken in reprisal for her EEO activity.
Disparate Treatment Claim
Complainant's claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). Initially, 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). Following this
established order of analysis is not always necessary where the agency
articulates an explanation for its actions. In such cases, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis--the ultimate question of whether complainant has shown by a
preponderance of the evidence that the agency's action was motivated
by discrimination. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-14 (1983). It is complainant's burden to
demonstrate by a preponderance of the evidence that the agency's action
was based on prohibited considerations of discrimination, that is, its
articulated reason for its action was not its true reason but a sham
or pretext for discrimination. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
We find that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The agency's explanations show that its
actions were based on legitimate considerations about the quality of
complainant's work and reasonable administrative decisions by agency
managers. Complainant has not demonstrated that the criticism of her
work performance was not accurate or unwarranted or that S1's reasons for
a meeting were based on discriminatory factors. Further, her criticism
of others has not undermined the agency's explanations or shown that her
work performance did not merit criticism. To the extent that complainant
raised claims about incidents for which the agency was unable to provide
an explanation or were normal customs and actions within the workforce,
assuming they occurred, we find that she failed to demonstrate that such
actions were based on prohibited and discriminatory considerations. We
find therefore that complainant has not shown that the agency's reasons
for its actions were pretextual.
To address her claim based on reprisal, complainant must establish a prima
facie case by showing that (1) she engaged in prior protected activity;
(2) the acting agency official was aware of the protected activity;
(3) she was subsequently disadvantaged by an adverse action; and, (4)
there is a causal link between the protected activity and adverse action.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., supra;
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988). The causal connection may be shown by
evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive is
inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Even if complainant established a prima facie case, as stated above,
the agency articulated legitimate, non-discriminatory reasons for its
action that complainant was unable to show were pretextual. We find
therefore that the agency did not discriminate against complainant based
on reprisal.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
05-30-00
Date Carlton 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:
___________ _____________________
Date
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.
2Although complainant alleged discrimination in violation of
the Rehabilitation Act based on her pregnancy-related condition,
pregnancy is not considered a disability under the Rehabilitation Act.
See Roberts v. Department of the Interior, EEOC Appeal No. 01950530
(April 30, 1996). The Pregnancy Discrimination Act amended Title VII
to prohibit discrimination on the basis of pregnancy, childbirth, or
related medical conditions. 42 U.S.C. � 2000e(k). Such claims are
generally resolved applying the same analysis as is employed in other
Title VII cases. See Hayes v. Shelby Memorial Hospital, 726 F. 2d 1543,
1547 (11th Cir. 1984); Nolen-Frisby v. Department of Transportation,
EEOC Appeal No. 01950312 (May 1, 1997); Jackson v. USPS, EEOC Appeal
No. 01945098 (May 29, 1996).
3Documents in the record indicate that complainant promised in late 1996
to send her response with supporting documents to the Investigator but
did not do so until May 30, 1998, after issuance of the FAD. Complainant
had filed an earlier complaint (No. 95-52-0056) in February 1995, and
her appeal from the agency's April 10, 1997, FAD is pending before the
Commission under EEOC Appeal No. 01975364.
4All events occurred in 1995, unless otherwise stated.