01a54895
01-05-2005
May H. Su, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
May H. Su v. Department of the Army
01A54895
January 5, 2005
.
May H. Su,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A54895
Agency No. ARPOM04SEP47580 (ARDLI04FEB000016)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as an Assistant Professor at the agency's Defense Language Institute,
Foreign Language Center in Presidio of Monterey, California. Complainant
sought EEO counseling and subsequently filed a formal complaint on March
23, 2004, alleging that she was harassed and discriminated against on
the basis of national origin (Asian/Taiwanese) and in reprisal for prior
EEO activity (arising under Title VII) when:
(1) On March 1, 2004, her supervisor informed her that her appointment
would not be extended beyond the expiration date;
(2) On February 6, 2004, her supervisor counseled her for failing to
provide assistance to a student;
(3) On January 29, 2004, her supervisor counseled her for leaving work
early;
(4) On January 9, 2004, her supervisor asked her to write a formal letter
of apology to a co-worker for an incident that occurred between them in
December 2003, and
(5) Complainant experienced continuous computer problems in the
workplace.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency assumed that complainant had properly set forth
prima facie claims of national origin and reprisal discrimination,
even though it determined that she had not shown that similarly situated
individuals outside of her protected class were treated differently under
similar circumstances. Nevertheless, the agency found that management
had articulated legitimate, non-discriminatory and non-retaliatory
reasons for its actions. Specifically, the agency found that complainant
was not fit to teach because the program could not depend on her as
complainant was often late, did not teach, and was in constant trouble
with her fellow team members. With regard to the harassment claim,
the agency concluded that the alleged improper actions did not rise to
an actionable level because no reasonable person would find the acts
were so severe or pervasive to create a hostile work environment.
On appeal, complainant contends that the agency erred; however, she does
not address its legal conclusions. She merely argues her version of
the facts. Nevertheless, we review her statement in the most favorable
light to her. We further note that complainant attempts to introduce
new evidence on appeal � the affidavit of a former co-worker. We decline
to review this document.<0> The agency, for its part, requests that we
affirm its FAD.
Legal Analysis
The Commission shall review the agency's final decision based on a de novo
standard. See 29 C.F.R. � 1614.405(a). This essentially means that we
look at this case with fresh eyes, and we are free to accept (if accurate)
or reject (if erroneous) the agency's factual conclusions and legal
determinations, including the ultimate fact of whether discrimination
occurred and a federal employment discrimination statutes was violated.
See id.
Complainant does not bring forth direct evidence of discrimination;
therefore, the agency applied the proper legal standard and analyzed
this matter as a disparate treatment claim under the standards set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). According to
this analysis, complainant initially must 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. See St
Mary's Honor Cntr. v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Next, in response,
the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas,
411 U.S. at 802. Finally, 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. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53;
McDonnell Douglas, 411 U.S. at 804.
The retaliation analysis follows essentially the same three part
structure of a national origin claim. To establish a prima facie case
of reprisal, complainant may show that: (1) she engaged in protected
activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Hochstadt v. Worcester Found. for Exper. Biol., Inc. 425 F. Supp. 318
(D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to claims of reprisal); Coffman v. Dep't of Veteran Affairs,
EEOC Request No. 05960473 (Nov. 20, 1997). The nexus may be shown by
evidence that the adverse treatment followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. See Clay v. Dep't of Treasury, EEOC Appeal No. 01A35231
(Jan. 25, 2005).
We shall assume, as the agency did, that complainant established a prima
facie cases of national origin and retaliation. Nevertheless, we agree
with the agency that she did not prove that the agency's proffered reasons
are a pretext for discrimination. We have repeatedly recognized that
the agency generally has broad discretion to set policies and carry out
personnel decisions and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). The governing
regulations say that the employment of a term employee automatically ends
upon the expiration of the term appointment; extensions of the appointment
are no guarantee See Ex. F-27, 5 C.F.R. �� 316.301(a), 316.303(b). Upon
being hired, complainant signed a statement indicating that she understood
the temporary nature of her position. See Ex. F-22, Memo from Civilian
Personnel Office to complainant of 5/22/00 (stating it is the �policy of
the [agency] to hire temporary ... employees for specific periods of time
in accordance with the needs of individual activities and branches.�).
Although another assistant professor was hired to replace complainant,
management determined based on complainant's conduct detailed below, she
was not a team player who could work well with colleagues and carry out
the mission of the organization. See Administrative Conference Transcript
(TR) at 64. We do not find this decision to be idiosyncratic or suspect.
The action management took against complainant on January 9, January 29
and February 6, 2004, all stem from complainant's own improper conduct.
There is ample third party evidence, and complainant herself acknowledges,
that a serious altercation occurred between complainant and a co-worker
in December 2003 which lead management to require complainant to draft a
letter of apology. See TR at 26, 56, 91-7, 99, 101; Investigative File
(IF) at 60, 68. Similarly, complainant and a co-worker both acknowledge
that they left work early without prior approval one day, prompting
management to counsel both employees on agency policy. See TR at 29, 57;
Ex. F-2 at 48-49. As for the February 6th counseling, a student offered
a declaration stating that complainant had not given him adequate time
during a previously scheduled one-on-one session. See Ex. F-11. After
the student complained, complainant's supervisor counseled complainant
on the incident. See TR. at 62. Lastly, with regard to complainant's
claim that her computer was tampered, the agency provided the testimony
and statement of IT experts who worked with complainant in trying to
resolve her problems. Complainant accused co-workers of sabotaging her
work and preventing her from teaching students about Taiwan; however, both
witnesses stated that there was no evidence of tampering. Many faculty
members were using new computers that had glitches and that could have
been the problem, but that there was no evidence of a security breach
See IF at 42-45; TR 131, 136, 138-40.
Having reviewed the facts, the agency's actions and the its legal
conclusions on the matter, we find no error. The agency took proper
action in all respects. Complainant, for her part, does not provide any
evidence that the actions complained of were motived by discriminatory
animus toward her national origin or because of her protected activity.
Complainant has simply failed to present evidence that more likely than
not the agency's articulated reasons for its actions were a pretext for
discrimination.
Harassment
Under the standards governing harassment allegations set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), complainant's claim
must fail. See Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6 (Mar. 8, 1994). She must prove that: (1) she was subjected
to harassment that was sufficiently severe or pervasive to alter the
terms or conditions of employment and create an abusive or hostile
work environment, and (2) the harassment was based on membership in a
protected class. See id. The evidence in the record is insufficient to
support a finding that the challenged actions satisfy either criterion.
Given that we find the agency's actions to be legitimate under these
set of facts, we do not find the acts were severe or pervasive to have
created a hostile work environment. Moreover, as mentioned above, we
do not find that the alleged improper actions were due to her national
origin or her prior protected 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 (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 5, 2005
__________________
Date
0 1As a general rule, the Commission will not
consider new evidence on appeal unless there is an affirmative showing
that the evidence was not reasonably available prior to the investigation.
See EEO Management Directive 110, Ch. 9 � VI.A.3 (1999); see also Federal
Sector Equal Employment Opportunity, 64 Fed. Reg. 37,654 (July 12, 1999)
(�[N]o new evidence will be considered on appeal unless the evidence
was not reasonably available during the hearing process�). Although the
Commission may supplement the record pursuant to 29 C.F.R. � 1614.405(b),
we have chosen to exercise this right �only in rare instances to avoid
a miscarriage of justice,� such as when the record is so incomplete as
to require remand to the agency in order to complete the investigation.
EEO Management Directive 110, Ch. 9 � V.C (1999).