0120122374
10-24-2012
Mollie P. Frazier, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Mollie P. Frazier,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120122374
Agency No. HS-CBP-01482-2011
DECISION
On May 7, 2012, Complainant filed an appeal from the Agency's April 5, 2012, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Agriculture Specialist at the Agency's Area Port facility in Mobile, Alabama. On July 26, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Since October 24, 2010, management assigned Complainant to supervise the Operations and Targeting Areas, in addition to her Supervisory Agriculture Specialist duties.
2. In May 2011, a management official made critical statements about Complainant during the investigation of a prior complaint.
3. On August 31, 2011, management instructed Complainant to go on location with subordinate Agriculture Specialists at least once a week.
The Agency dismissed claim (2) finding that Complainant failed to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency noted that Complainant's claim involved statements allegedly made during a prior EEO complaint. The Agency accepted claims (1) and (3) for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to harassment or discrimination as alleged.
Complainant appealed asserting that the Agency mislead and misrepresented critical accounts and documentation within the record. Complainant argued that an accurate final decision cannot be reached on the record provided here. As such, Complainant requested that the Commission find in her favor or further violations of the law will continue. The Agency asked that the Commission affirm its decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Dismissal of Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In Claim (2), Complainant alleged that a management official made statements about her during the course of processing a prior complaint. To find that such statements state a claim would have a chilling effect on witness statements in the EEO process. See Blinco v. Dep't of the Treasury, EEOC Request No. 05940194 (May 25, 1994), Calloway v. Dep't of the Army, EEOC Request No. 01943406 (July 18, 1994). These matters do not concern a term, condition, or privilege of Complainant's employment. Even applying the Commission's more liberal view of retaliation claims, we find that allegations concerning the credibility of a witness should be raised and considered during the adjudication of the prior complaint where the witness statement was made. For these reasons, we find that claim (2) fails to state a viable claim of discrimination on the bases of race and sex or unlawful retaliation
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. As to Claim (1), the Agency indicated that Complainant, along with the Agency's Supervisors, were to supervise the Agency's operational areas or teams. Due to the limited number of uniformed supervisory staff, management assigned supervisors over other teams based on need. As such, Complainant was assigned areas in addition to her Agriculture Specialists. In response to Claim (3), the Agency indicated that Complainant was instructed to accompany the Agriculture Specialist while the Specialist conducted vessel boardings and cargo inspections because they were part of the Agriculture Specialist Program. Management believed that Complainant needed to go on location with her subordinates to review their activities and provide guidance during the examinations. Finding that the Agency articulated legitimate, nondiscriminatory reasons for its action, Complainant must show that the reasons were pretext for discrimination. Upon review, we find that Complainant has failed to do so. As to Claim (3), it appears that Complainant believed her time would be better served in the office rather than on location with the subordinate. We determine that this is not sufficient to show that the Agency's reason as to Claim (3) was discriminatory. As to Claim (1), Complainant asserted that she and another supervisor were discriminated against without further specificity.1 Therefore, we conclude that Complainant failed to show that the alleged events constituted discrimination based on her race and/or prior protected EEO activity.
Harassment
It is well-settled that harassment based on an individual's race and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on race and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). As noted above, we found that Complainant failed to show that the events raised in Claims (1) and (3) occurred because of Complainant's protected bases. Therefore, we conclude that Complainant has not established element (3) of a prima facie case of harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court does not extend your time in which to file a civil action. Both the request and t
he 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
October 24, 2012
__________________
Date
1 We note that on appeal, Complainant asserted that the Agency's final decision was based on the Agency's mischaracterization of the evidence and that an Administrative Judge would have found differently. The Commission notes that Complainant did not request a hearing.
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0120122374
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122374