01-2007-2593_Robinson
03-13-2009
Pamela Robinson, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Pamela Robinson,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120072593
Agency Nos. ARARL04NOV08892
ARARL05DEC12761
Hearing No. 430-2007-00002X1
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 9, 2007 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.
Complainant claims that she was subjected to discrimination in reprisal
for prior EEO activity when: (1) on October 19, 2004, she was not referred
for the position of Secretary, Office Automation (OA) DK 0318-03; (2) she
was not granted access to the Automated Time and Attendance Production
System (ATAAPS) until November 15, 2005, one month after the completion
of her National Agency Check (NAC) on October 11, 2005; (3) during the
Fiscal Year (FY) 2005 performance period, she was denied the opportunity
to take a career development training course, held during June or July
2005, and to participate in the Government Administration Management
Certification Program; (4) in the October/November 2005 time-frame, she
was deceived about the workload for an administrative position during
an interview conducted by a Supervisory Contract Specialist (SCS); (5)
on October 11, 2005, the Director of the Mechanical Sciences Division and
complainant's first-line supervisor since 2004 (D1) contacted the Federal
Investigations Processing Center to negatively influence the outcome of
the investigation for her security clearance; (6) on December 15, 2005,
she received an unfair performance rating for the period October 1,
2004 through September 30, 2005; and (7) on March 30, 2006, she learned
that she already had a National Agency Clearance Investigation (NACI)
and that in 2005, her third-level supervisor (S3), D1, her first-line
supervisor since 2005 (S1), and an agency Security Officer (SO) had her
unnecessarily investigated for a NACI.
Complainant also alleges that she was discriminated against based on her
race (African-American), color (black), sex (female), and in reprisal
for prior EEO activity when on January 19, 2006, she was subjected to
harassment (nonsexual) when her supervisors, S3 and D1, allowed a fellow
employee to verbally attack and slander her during a training session.
During the relevant time-frame, complainant was employed as an
Administrative Support Assistant (ASA), DK-303-II, in the Mechanical
Science Division, Army Research Office (ARO), U.S. Army Research
Laboratory (ARL) in Durham, North Carolina. As of November 2005, ARO
contained four employees. In September 2004, the agency advertised the
Secretary (OA), DK-0318-3, position in the ARO, Math and Information
Sciences Directorate. There were 94 self-nominated applicants who
were rated and ranked by an automated system referred to as RESUMIX.
On October 14, 2004, management received a referral list of seven
candidates who matched five or more of the thirteen skills identified
in the position at issue. RESUMIX determined that complainant met two
of the thirteen skills and did not refer her for consideration.2
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally
establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in
this case, however, because the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation
is not its true reason, but rather is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Claim 1
The record shows that complainant's RESUMIX submission did not
meet the criteria for referral for consideration. Specifically,
complainant's RESUMIX submission reveals that her application does not
mention typing skills, preparation of correspondence, or filing, all of
which are required secretarial skills. SE's RESUMIX submission lists
knowledge of pertinent regulations; preparing and processing budget
paperwork; providing secretarial support including mail processing,
travel preparation, time keeping, purchasing supplies and equipment,
typing, preparation of correspondence, briefs, and forms; utilization of
graphics and word-processing software; and related secretarial duties.
Based on the skills listed in the two submissions, SE was objectively
more qualified than complainant for the position.
Claims 2, 5 and 7
The record supports the finding that all employees at ARO are required
to complete a Systems Authorization Access Request (SAAR) form and
have a current National Agency Check (NAC) in order to be granted
access to the Automated Time and Attendance Personnel System (ATAAPS).
ARO employees are not required to have a security clearance to access
ATAAPS. The record also shows that all ARO timekeepers and certifiers
were directed by management to complete a (SAAR) form in order to have
access to ATAAPS. The evidence in the record supports the finding that
complainant failed to submit a SAAR form in a timely fashion even though
such form had been requested by D1, S3, and S1. Independent contractors
were also expected to meet the access requirements with respect to the
ATAAPS. It is undisputed that complainant submitted her initial SAAR
form on October 22, 2004, to serve as a timekeeper in ATAAPS. On October
22, 2004, D1 signed the form as complainant's supervisor. Thereafter,
the Office of Personnel Management (OPM) initiated a National Agency
Clearance Investigation (NACI) of complainant. The OPM investigator
contacted S1 by phone to obtain information relevant to the NACI.
During their conversation and in response to the OPM investigator's
questions, S1 stated that complainant could be angry and hostile when
pressed, which made him question her stability. Despite S1's comments
to the OPM investigator, the results of the NAC in October 2005, were
favorable to complainant.
Complainant failed to show that management officials took any adverse
action or failed to act in such a way as to raise an inference of
retaliation. The brief delay in granting complainant's access to ATAAPS
after completion of the NAC has not been shown to be harmful to her.
Regarding complainant's allegation that S3 and D1 unnecessarily had her
investigated for an NACI, the record is devoid of evidence to support
this claim. Moreover, management denies the allegations. We also find
insufficient evidence in the record to conclude that the comparative
employee identified by complainant is similarly situated to complainant.3
Accordingly, the record fails to establish that any disparate treatment
between complainant and the identified comparison employee is the result
of retaliatory animus.
Claim 3
Complainant submitted the following two training requests for 2005: (a)
the 2005 Residential Professional Development Seminars on June 28, 2005;
and (b) the Federally Employed Women - 36th National Training Program
on July 18, 2005. S1 testified that complainant's training request to
attend the Federally Employed Women Seminar in Reno, Nevada was his first
experience in reviewing an employee's training request. S1 explained
that he denied the request because it was incomplete, it was too costly,
it was not mission-related, and he was concerned with complainant's
workload related to delinquent performance reviews. According to S1, the
request to attend the 2005 Residential Professional Development seminars
was misplaced before he had the chance to review it. S1 recommended
to complainant that she resubmit her request. However, complainant did
not resubmit her request to attend the residential Development Seminar.
In addition, the record shows that complainant denied S1's August 8,
2005 offer to help her develop a new training plan. Complainant failed
to present sufficient evidence to support a finding that S1's legitimate,
non-retaliatory reasons for his actions were pretext for retaliation.
Claim 4
Complainant testified that she applied for and was interviewed by SCS for
the Administrative Assistant, GS-7, position in his office. According to
complainant, SCS deceived her when he told her in the interview that
the position contained a lot of work and that she would be providing
administrative support to him and other employees in the section.
Complainant asserts that she later found out that she would have been
providing administrative support to only SCS. Complainant also asserts
that S3 improperly gave SCS negative information about complainant which
improperly influenced his selection decision. SCS denies complainant's
assertions. Moreover, the record is devoid of evidence to support the
conclusion that complainant was misled about the duties of the position
for which she applied; moreover, her allegations are directly contradicted
by witness testimony. The record shows that the individual selected by
SCS performed work for other offices in addition to working for SCS.
Further, the record is devoid of evidence that complainant was the
best-qualified applicant for the position.
Claim 6
The record shows that for every year since 1999, complainant received a
"Commendable" rating from various management officials, including those
not alleged as responsible management officials herein. For the 2004
rating period there were no "Distinguished" ratings among the ASAs.
In addition, the record shows that only two out of eight ASAs received a
"Distinguished" rating for the 2005 rating period. The other ASAs, which
included complainant, received "Commendable" ratings. Moreover, the
preponderance of the evidence does not support complainant's assertion
that she was improperly denied a "Distinguished" rating during the
relevant time-frame.
Harassment Claim
Complainant alleges that in January 2006, during a training session, a
co-worker (C1) verbally attacked her and two other co-workers (C2 and C3)
when C1 said, "I do not believe you. You're not telling truth. Why are
you all of a sudden complaining of this?" According to complainant,
C1 slandered her when she was explaining in the meeting that she had
respiratory problems, and C1 said in public that her statement was
not true. The record shows that complainant did not inform anyone
in management official about her concerns regarding this incident.
Management testified that they were not aware of the incident.
The witnesses testified that they did not witness complainant or any
other employee verbally attacked or slandered during the meeting.
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
Although complainant clearly takes issue with C1's alleged statement,
complainant here complains of a one-time remark, unaccompanied by
any concrete action. Based upon the foregoing, we find that, even
assuming that C1 uttered the statement alleged, the facts presented are
insufficient to state a claim of harassment.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision,
because the preponderance of the evidence of record does not establish
that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 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
March 13, 2009
Date
1 Complainant requested a hearing before an Administrative Judge (AJ),
who subsequently dismissed the hearing request based on complainant's
failure to provide a written justification for failing to submit a
pre-hearing report; to participate in a pre-hearing conference call;
to provide alternative times when complainant and other parties were
available; and otherwise to comply with the AJ's Acknowledgement and
Scheduling Order. Although complainant does not raise this issue on
appeal, we note that the AJ's dismissal of the hearing request under
these circumstances was appropriate. See Sanders v. United States Postal
Service, EEOC Appeal No. 01A00214 (February 10, 2000).
2 On November 8, 2004, the Director of Mathematics and Information
Sciences (DMIS), Directorate Army Research Office, selected one of the
seven candidates referred for consideration (SE), who was promoted on
November 28, 2004.
3 The preponderance of the evidence does not support the finding that the
identified comparison employee's security clearance status was identical
to complainant's security clearance status.
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01200700002X
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072593