May H. Su, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 5, 2005
01a54895 (E.E.O.C. Jan. 5, 2005)

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).