0120090103
06-18-2010
Sonya R. Garrett, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sonya R. Garrett,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090103
Agency No. 2003-0376-2008100123
DECISION
On October 1, 2008, Complainant filed an appeal from the Agency's August
14, 2008, 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's final
decision.
ISSUES PRESENTED
The issue presented is whether Complainant has established that the
Agency discriminated against her on the basis of reprisal with regard
to a non-selection and when she was terminated from her position during
her probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a File Clerk, GS-4, at the Agency's St. Louis, Missouri
Records Management Center. Complainant applied for one of five
available Program Support Assistant (PSA) positions. She asked her
supervisor to provide a performance evaluation for submission with her
job application. She maintains that her supervisor told her to write a
letter of recommendation by him, in lieu of a performance evaluation.
Complainant thereafter wrote a letter under his name and submitted
the unsigned letter with the job application. On October 5, 2007,
Complainant learned that she had not been selected for the position.
Complainant disputed her nonselection and maintained that, based on her
fourteen and one-half years of federal experience, ten years of research
experience, nine years working with military records at the National
Archives, and a Masters Degree, she was uniquely qualified for the PSA
position.
During this same time, Complainant was questioned by management about
the supervisor's unsigned recommendation. Management asserted that the
supervisor had denied authoring the letter. Complainant maintains that
she explained that she had had a conversation with the supervisor and he
had authorized the letter. In a second meeting, Complainant was asked
about a signed copy of the recommendation letter that had been submitted
with another application. Complainant acknowledged that someone else had
forged the supervisor's signature on the letter. Complainant stated that
management failed to believe her good-faith explanation, and on October
31, 2007, she received notice of termination effective November 7, 2007.
In addition to concerns regarding the recommendation letter, the notice
of termination also listed a safety violation as one of the reasons why
complainant was being terminated.
Complainant contends that she was given notice of termination because
of her prior and ongoing EEO activity. As proof, Complainant maintains
that the Facilities Director told her representative that she would be
terminated if she did not drop her EEO complaint. Complainant contends
that she was forced to resign in lieu of her pending termination and
therefore believes that her removal was a constructive discharge.
O on November 18, 2007, Complainant filed an EEO complaint alleging
that she was discriminated against on the basis of reprisal for prior
protected EEO activity when:
1. Effective November 6, 2007, Complainant resigned (constructive
discharge) from her GS-4 File Clerk position, in lieu of being terminated
during her probationary period; and
2. On or around October 5, 2007, management failed to select
Complainant for a Program Support Assistant, GS-5/6, position.
At the conclusion of the investigation, Complainant was provided 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 she was subjected to discrimination as alleged.
Specifically, the Agency found that Complainant established a prima
facie case of discrimination based on reprisal as to claim 1 but not
with claim 2. Notwithstanding, the Agency found that it had articulated
legitimate, nondiscriminatory reasons for its actions; namely, that
Complainant was allowed to resign in lieu of termination because she
forged letters of recommendation. With regard to claim 2, the Agency
explained that Complainant was not selected for the PSA position because
she was not the best-qualified candidate for the position. The Agency
found that Complainant failed to show that its reasons were pretext for
discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the managers involved took pleasure
in causing her pain. She contends that she repeatedly asked for a
performance review so that she would be able to apply for available
positions. Complainant contends that she was told by her supervisor to
write the letter and it is ridiculous that she would have forged these
letters. Complainant maintains that her termination is an example of
the Agency's practice of firing Black workers.
In response, the Agency contends that Complainant has not presented
any evidence which demonstrates that its nondiscriminatory reasons were
pretext for discrimination.
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 EEOC Management
Directive 110, 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").
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a Complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the Agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the Agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Complainant further alleges that the Agency's alleged discriminatory
actions forced her to leave her position at the Agency. Complainant is
alleging a constructive discharge claim. Constructive discharge occurs
when an employer deliberately renders an employee's working conditions
so intolerable that the individual is forced to retire from his/her
position. Constructive discharge only occurs when the Agency's actions
were taken with the intention of forcing the employee to retire. The
Commission has established three elements which Complainant must prove
to substantiate a claim of constructive discharge: 1) a reasonable
person in Complainant's position would have found the working conditions
intolerable; 2) the conduct causing the intolerable working conditions
is an EEO violation; and 3) Complainant's resignation was caused by
the intolerable working conditions. See Taylor v. Army and Air Force
Exchange Service, EEOC Request No. 05900630 (July 20, 1990); see also
Perricone v. United States Postal Service, EEOC Request No. 05900135
(June 11, 1990).
We find that the Agency properly issued a finding of no discrimination.
The Commission finds that Complainant failed to show that the Agency's
articulated nondiscriminatory reasons - that Complainant was allowed
to resign during her probationary period in lieu of termination because
of questions about her honesty and integrate with regard to the forged
letters of recommendation and Complainant was not selected for the
position of Program Analyst Specialist because she did not have a strong
interview and did not score as well as some of the other candidates -
were pretext for discrimination. Further, the record shows that with
regard to the nonselection the selecting official was not aware of
Complainant's prior EEO activity.
To show pretext, Complainant contends that her union representative
was told that she would be terminated if she did not dismiss her EEO
complaints. This incident is disputed. Management officials, however,
acknowledge that Complainant's union representative was told that they
wanted Complainant terminated or given a status of resignation in lieu
of termination so that Complainant could not be rehired. Further,
with respect to Complainant's contention that her resignation was a
constructive discharge, we find that there was no evidence presented
that Complainant's working conditions were so intolerable as to justify a
constructive discharge claim. Complainant resigned because she was about
to be terminated. She has not shown that this action had anything to do
with her prior EEO activity. Finally, with respect to her contentions
on appeal, we note that complainant has not presented any evidence which
demonstrates that her termination was part of an overall plan to fire
Black employees. Therefore, the Commission finds that Complainant has
not established that the Agency's nondiscriminatory reasons were pretext
for discrimination.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination is
AFFIRMED.
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
June 18, 2010
Date
2
0120090103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090103