0120091908
08-28-2009
Princess Lester, Complainant, v. Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Agency.
Princess Lester,
Complainant,
v.
Kenneth Y. Tomlinson,
Chairman,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120091908
Agency No. OCR-08-16
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 13, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as an Administrative Assistant, GS-303-09, at the agency's Office of Engineering Technical Services in Washington D.C.
On January 28, 2008, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were successful.
On March 21, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of race (African-
American), age (over 40), color (light-skinned)1 and in reprisal for prior EEO activity when:
1. during her January 25, 2008 mid-year performance review meeting, her supervisor (S1) failed to provide productive feedback and had no recommendations for her to improve her job performance. Complainant claimed that she was told she might not be assigned a license to use the new Momentum Financial System because some management directed changes were being made. These actions leave complainant vulnerable to a Reduction in Force;
2. on January 16, 2008, she received an email excluding her from an opportunity to perform additional duties during a co-worker's absence, despite having previously performed these duties;
3. on several occasions (including a meeting with S1 on November 30, 2007), S1 made false accusations regarding receiving complaints from co-workers about her. S1 also removed complainant's invoice processing duties;
4. around September 2007, she was not selected for the GS-9/11 Administrative Officer position in Engineering Resources which was within her immediate office; and
5. on September 15, 2008, during a meeting to discuss her Annual Performance Appraisal, she was notified that she would be assigned, over her objections, to serve as the backup for another employee and she was also pressured to join the mentoring program.2
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with complainant's request, the agency issued a final decision on February 13, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its February 13, 2009 final decision, the agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that complainant was not aggrieved. The agency also dismissed the portion of claim 1 regarding S1 purportedly informing complainant that she might not be assigned a license to use the Momentum Financial System, on the alternative grounds of mootness pursuant to 29 C.F.R. � 1614.107(a)(5). Specifically, the agency concluded the record reflects that complainant was provided with a license to use the new system.
The agency dismissed claims 3 and 4 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The agency determined that complainant's initial EEO Counselor contact on January 28, 2008, was beyond the 45-day limitation period. The agency found that even assuming complainant had contacted an EEO Counselor in a timely manner concerning claim 3, complainant nevertheless failed to establish a prima facie case of discrimination. The agency further found that complainant failed to establish that the agency's legitimate, nondiscriminatory reasons for its actions were a pretext for unlawful discrimination.
Regarding claims 2 and 5, the agency found that complainant did not establish a prima facie case of race, age, color and reprisal discrimination. The agency further found that even if complainant established a prima facie case, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding claim 2, S1 stated that on January 16, 2008, she sent an email message to several engineering colleagues, including a copy to complainant. Therein, S1 notified them that in the absence of a named employee (E1) who had recently assumed new financial management responsibilities, she was assigning the Administrative Officer (AO) to serve as a back-up Allotment Fund Holder to certify for E1's Broadcasting Capital Investment (BCI) and FM Radio accounts. S1 stated that AO was familiar with these responsibilities for BCI accounts because AO had recently been the primary Allotment Fund Holder. S1 stated that her email also mentioned that a Resource Management Specialist had volunteered to facilitate administrative tasks for E1's accounts.
S1 stated that she does not recall complainant expressing concerns to her about this temporary arrangement. S1 further stated that the January 16, 2008 email that complainant received "was not in any way intended to exclude her from additional duties. In fact, before this complaint was filed, I proposed to [complainant] that she assume additional duties."
Regarding claim 3, S1 denied complainant's assertions that she made false accusations regarding receiving complaints from co-workers about complainant, and that she had removed complainant's invoice processing duties. S1 stated "I do not recall such a discussion. At no time have I heard a co-worker make any complaint about [complainant] that mentions or concerns [complainant's] race, color, age, or involvement in EEO activity." S1 stated that complainant "has continuously maintained invoice-processing duties related to her credit card account during the time I have been her supervisor. Moreover, in March 2008, I repeatedly suggested that [complainant] assume additional responsibilities for invoice payments related to the Engineering Facilities account."
Regarding claim 5, S1 stated that the purpose of the September 15, 2008 meeting was to discuss complainant's annual performance appraisal and "her performance was evaluated as 'acceptable' under the Agency's pass/fail system." S1 further stated that because complainant had previously indicated an interest in developing her career potential, S1 "mentioned two options that we had previously discussed. Both of these options held the potential to simultaneously enhance her performance and her career development."
Regarding complainant's claim that S1 pressured and harassed complainant to serve as the backup for a named employee (E2) and to join the Mentoring Program, S1 denied this claim. S1 stated "while I have not assigned [complainant] to serve as a backup, I hoped to persuade [complainant] to reconsider this option as an excellent opportunity to advance her career goals." S1 stated that within the agency, the mentoring program "is highly regarded as a vehicle for employees who wish to advance. Our discussion was intended as a positive suggestion to help [complainant]. In fact, when I spoke to a colleague in the Human Resources Officer about [complainant's] interest in a promotion, he suggested that she enroll in the Mentoring Program."
On appeal, complainant provides extensive arguments regarding the agency's decision. For example, complainant argues that the final agency decision was based on an incomplete investigation record. Complainant specifically argues that the agency failed to amend her complaint by including national origin as a basis.
In response, the agency requests that the Commission affirm its final decision. The agency further argues that complainant never filed an amendment to include national origin as a basis.
Claim 1
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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Commission determines that complainant did not suffer a personal loss or harm regarding a term, condition or privilege of her employment. Finally, the Commission determines that the alleged agency action was not of a type reasonably likely to deter complainant or others from engaging into protected activity. Therefore, we find that the agency properly dismissed claim 1 for failure to state a claim.
Claim 4
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
The record discloses that the alleged discriminatory event occurred around September 2007. We concur with the agency and find that complainant did not raise the non-selection claim until January 28, 2008, when she contacted the EEO office, which is beyond the 45-day limitation period. Furthermore, we find that complainant should have reasonably suspected discrimination more than 45 days prior to her initial EEO Counselor contact. Complainant has presented no persuasive arguments or evidence on appeal warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, we find that the agency properly dismissed claim 4 for untimely EEO Counselor contact.
Claims 2, 3 and 5
As an initial matter, we note that, on appeal, complainant has asserted that she attempted to amend her complaint to add the basis of national origin (Cherokee Native American Indian heritage/characteristics), but the agency failed to consider this basis in its investigation and adjudication of the complaint. The agency denies the complainant sought to make this amendment. Without resolving this factual dispute, the Commission will, for the purposes of the analysis of this appeal, include national origin as one of the bases of alleged discrimination.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We find that after a careful review of the record, the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination. Moreover contrary to complainant's assertions on appeal, the Commission determines that the EEO investigation was adequate. Furthermore, even assuming many of complainant's assertions on appeal, the Commission does not find sufficient evidence to prove discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's dismissal of claims 1 and 4 on procedural grounds and finding of no discrimination concerning claims 2, 3 and 5 because the preponderance of the evidence of record does not establish that discrimination occurred.3
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
August 28, 2009
__________________
Date
1 The record reflects that color as a basis was later amended to the instant complaint.
2 The record reflects that claim 5 was later amended to the instant formal complaint.
3 Because we affirm the agency's dismissal of claim 1 for failure to state a claim, we find it unnecessary to address portion of claim 1 concerning complainant's allegation that S1 told her that she might not be assigned a license to use the Momentum Financial System on alternative grounds of mootness; and because we affirm the agency's finding of no discrimination concerning claim 3, we find it unnecessary to address the agency's alternative determination to dismiss this claim on the grounds of untimely EEO Counselor contact.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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