01a43013
08-24-2005
Minnie L. Carr-Howard, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Minnie L. Carr-Howard v. Department of the Army
01A43013
August 24, 2005
.
Minnie L. Carr-Howard,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A43013
Agency No. BEFLFO0201C0010
Hearing No. 100-2003-8576X
DECISION
Complainant appeals to the Commission from the agency's March 1, 2004
decision finding no discrimination. Complainant alleges discrimination on
the bases of race (Negro), color (black), religion (Christian/Protestant),
National Origin (Black/Negro/American), disability (diabetes, acute
asthma, bronchitis), sex (female), age (53) and reprisal when:
On December 3, 2001, she received her annual performance appraisal for
2001 and was rated as having exceeded 4 of 7 objectives instead of the
outstanding appraisal that she believes she earned.
On December 3, 2001, she was informed that two male co-workers were
conducting a Command Staff Review Visit and she was not given the same
opportunity.
In October 2000, she requested and never received transitional training.
Also, on November 6, 2001, she reminded her supervisor that she had not
received training to conduct a Command Review/Staff Visit.
In May 2001, she was harassed because of her disability by being
required to participate in overnight teaming, travel away from home,
and not being permitted to eat at certain specified times.
For the rating year 2002, her discussions with her supervisor
regarding her performance standards/objectives did not result in
standards/objectives with which she agrees.
She received a Letter of Counseling in which her supervisor cautioned
her about her refusal to sign DA Form 7222-1 and the consequences
of failure/refusal to obey orders and directives given to her by her
supervisor.
On the basis of reprisal only, complainant alleged that she was
discriminated against when:
Complainant received a Letter of Reprimand.
The agency, on March 7, 2002, issued a notice of partial
acceptance/dismissal. In the March 7, 2002 notice, the agency accepted
claims 1 and 2 for investigation. The agency dismissed claims 3 - 6 for
failure to state a claim. Complainant, via letter dated June 13, 2002
amended her complaint to add claim 7, which was accepted by the agency.
After an investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). Complainant subsequently withdrew her request
for a hearing, requesting a decision by the agency. By decision dated
March 1, 2004, the agency found no discrimination on claims 1, 2 and 7.
The agency, with regard to claims 2 - 6 found the following:
The activity dismissed your discrimination claims that you were
treated unfairly with respect to training, harassment, and performance
standards/objectives for failure to state a claim; and the letter of
counseling, because it was not made part of your Official Personnel File.
The activity's dismissal of these claims was not appropriate because
it was merit based. The applicable regulation does not provide for
the dismissal of such claims. Just the same, you have not prevailed
in these matters. The claims regarding training, harassment, and
performance standards/objectives are directly related to the performance
rating at issue. The Letter of Counseling preceded the more serious
Letter of Reprimand. Management's particular, aforementioned legitimate
nondiscriminatory reasons with respect to these matters have not been
discredited.
Thus, we consider this above paragraph paramount to a recision of the
agency partial dismissal, with an ultimate finding of no discrimination
on all claims. The agency found that complainant failed to establish
a prima facie case on any alleged basis except reprisal. The agency
further found that assuming complainant established a prima facie case,
the agency articulated a legitimate, nondiscriminatory reason which
complainant failed to adequately rebut. Complainant now appeals the
agency's March 1, 2004 decision.
The record indicates that during the relevant time in question,
complainant worked as a Procurement Analyst, GS-1102-13, in the
Contracting Operations and Review Division, Office of the Principal
Assistant Responsible for Contracting, Department of the Army, Corps
of Engineers. Her first line supervisor was Mr. X. Her second line
supervisor was Ms. Y.
Claim 1
Complainant argues she was discriminated against when she received her
annual performance appraisal and was rated �exceeded� instead of the
�outstanding� she believed she earned. Complainant argues she does not
feel like all the work she has done was reflected on the appraisal.
She believes she got �no credit, no respect for that whatsoever.�
Mr. X stated that complainant received exceeded instead of outstanding
because that is all she deserved. Specifically, Mr. X stated that in
the beginning, complainant turned in warrants on schedule. However, in
time, she was turning them in later and later. Mr. X stated that the
normal turnaround time was 15 days, whereas it would take complainant
three and four months. Further, complainant was asked to prepare a
course module for the PARC road show 2001. According to Mr. X, instead
of a full briefing, complainant submitted one list of discussion topics.
Further, the appraisal was signed by Ms. Y agreeing with the appraisal.
We find the agency articulated a legitimate, nondiscriminatory reason
for its action which complainant failed to adequately rebut.
Claim 2
Complainant argues she was discriminated against when on December
3, 2001, she was informed that two male co-workers were conducting
a command staffing visit in which she was not asked to participate.
Mr. X stated that not everyone has an opportunity to go on such reviews
because they are infrequent. Further, when reviews come up, Mr. X looks
for employees that are available and are generally the subject matter
experts in the area being addressed. According to Ms. X, one of the
co-workers involved was the normal team member for such activities. Also,
the second co-worker was taking over as coordinator. Thus, Mr. X wanted
the second co-worker to gain experience in the area for future scheduling.
We find the agency articulated a legitimate, nondiscriminatory reason
for its action which complainant failed to adequately rebut.
Claim 3
Complainant argues she was discriminated against when she did not receive
transitional training. Further, complainant argues that she reminded
her supervisor that she had not received training to conduct Command
Review/Staff Visits. Complainant does not specify which training courses
for which she applied. Further, the record does not indicate that
complainant specifically applied for courses other than Intermediate
Systems Acquisition Training, Purchase Card: Discussion of Policy;
and Fleet Card: Preventative Measures, all of which were approved by
Mr. X. Further, the record indicates that complainant withdrew from the
Intermediate Systems Acquisition class due to computer difficulties,
despite Mr. X requesting that she notify him if problems arise.
Specifically, after withdrawing from the course, Mr. X sent via electronic
mail, a message to complainant dated February 4, 2002, indicating that he
was approving her request to cancel the training program. He goes on to
query as to why she did not contact him upon encountering problems after
he, on December 26, 2001, asked her to advise him if she encountered
problems because he could have remedied the problem. Instead, Mr. X
received notice from the school indicating that complainant wished to
cancel due to �work related issues.� Mr. X asked complainant what the
�work related issues� were and complainant failed to respond.
In response to Mr. X's electronic message approving complainant's
withdrawal, complainant responded to Mr. X, her supervisor, via electronic
mail the same day with the following message, in pertinent part:
I find all of your statement below [from Mr. X's email] hard to believe.
If (sic) sounded as if you [illegible] want me to take the course from
the text of your messages at the beginning. Further, you gave me a
difficult time in [the] past while trying to register for the class.
Some of the evil things you have done will never be forgotten. Why didn't
you state that in the beginning that something could have been done?
That's so much like the right thing on your part. However, [illegible]
past is prologue. There's no need to re-visit the things that [illegible]
that you won't do. It's easy for you to look back to make yourself look
as if you have my best interest at heart and that you're Mister Nice Guy.
Nice try. I've learned from working with you that you can't get blood
from a turnip! All the men in your division get special privileges
up front. Yet, I'm repeatedly treated differently. . . .
It didn't work because �God is above the Devil!� You did not mean
business as far as I'm concerned. So what else is new? The computer
transmitting system broke down. At least you can't blame that on me.
Praise God from whom all blessings flow! He is having a good time
observing both of us and recording your true feelings and actions.
Justice will prevail in the end. Have a nice day.
We find the agency has presented a legitimate, nondiscriminatory reason
for its action which complainant failed to adequately rebut.
Claim 4
Complainant alleges she was discriminated against when in May 2001,
she was harassed because she was required to participate in overnight
teaming, travel away from home, and not being permitted to eat at certain
specified times. In complainant's complaint, complainant alleges that she
expressed health and safety concerns with regard to the overnight stay.
Complainant indicates that she �fear[s] for [her] safety based on not
being told in advance about a team meeting held during May 2001.� She
argues that although she complained to the Engineering Inspector General's
Office, there is �nothing to guarantee that the same thing will not
happen again.� Further, she indicates that it �is very dangerous in
that anything can be done to [her] when teaming overnight. . .�
The record contains an electronic mail dated May 23, 2001, from
complainant expressing those concerns. Specifically, complainant
explained that �Dallas has a murder city reputation because the beloved
President John F. Kennedy (JFK) was assasinated (sic) there� and that
she �would be glad to leave town [Dallas] sooner.� She further explains:
[A] man was dragged to his death in another Texas city for no reason. Let
the record show that not all Texans feel this way. However, if no respect
was given to JFK, a well loved, high ranking and respected dignitary,
almost King of America, I know what will happen to me. . . . I fear for my
safety . . . in the Sheraton Hotel, Dallas, Texas. (Emphasis original).
However, later, by letter dated March 11, 2002, complainant sent a wrote
to the EEO office in order to clarify her complaint. In that letter,
complainant clarifies that:
The overnight teaming stems from fear of not being allowed to get the
proper meals on time. This was demonstrated in this office. Having
diabetes didn't impact my traveling with the RCI Team. I travel to
Seattle, WA and Colorado Springs but was allowed to work because we agreed
on the steps we were going to take in advance. We functioned as a team.
Some actions were spur of the moment. It was strictly business and fun.
There is no indication that complainant was denied food at any time during
these overnight trips. Further, there is no indication that complainant
requested, or needs, a reasonable accommodation on the overnight trips.
We find complainant has failed to show she was discriminated against
with regard to claim 4.
Claim 5
Complainant alleges she was discriminated against when, for the rating
year 2002, her discussion with her supervisor regarding her performance
standards/objectives did not result in standards/objectives with which
she agreed. Complainant has failed to show that this discussion somehow
was motivated by discrimination.
Claims 6 and 7
Complainant argues that she was discriminated against when she received a
Letter of Counseling and a Letter of Reprimand. The record indicates that
complainant received a formal counseling letter for refusal to return her
performance appraisal either signed or with a notation that she refused
to sign. On February 6, 2002, when Mr. X met with complainant to give
her the formal counseling letter, complainant loudly stated that Mr. X
was �evil.� She further opined the following:
I will add this to all of the other things you have done to me. You are
a complete bastard. . . We'll see how you enjoy it when a judge shoves
a pitch fork up your ass. . . you are the devil. . . You're a real m_ f_.
Although complainant denied this outburst, the record contains statements
from co-workers working in close proximity that corroborate Mr. X's
statement. As a result of the outburst, complainant was issued a
Letter of Reprimand. We find the agency has presented a legitimate,
nondiscriminatory reason for its action which complainant failed to
adequately rebut.
We find complainant has failed to show, by a preponderance of the
evidence, that she was discriminated against on the bases of race, color,
religion, national origin, disability, sex, age, or reprisal. We make
this determination without making a finding as to whether complainant
is an individual with a disability under the Rehabilitation Act.
The agency's decision finding no discrimination is AFFIRMED.
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
August 24, 2005
__________________
Date