0120092334
09-24-2009
Susan E. Looper, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Susan E. Looper,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120092334
Agency Nos. NRCS-2007-00535
NRCS-2007-00068
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 4, 2009 final decision concerning the two captioned EEO complaints that claimed unlawful 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.
During the period at issue, complainant was employed as a District Conservationist for the agency's Natural Resources and Conservation Services (NRCS), assigned to Rupert, Idaho.
Complainant filed the two captioned formal complaints on January 15, 2008. Therein, complainant alleged that the agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
1. on an unspecified date, management failed to address the ongoing hostile work environment created by a Minidoka Soil and Water Conservationist District (MSWCD) board member (Agency No. NRCS-2007-00535); and
2. on June 12, 2007, an Idaho State Conservationist allegedly pressured her into foregoing her EEO claim and prevented her from pursuing her EEO claim (Agency No. NRCS-2007-00069).
The agency consolidated the two complaints for investigation. Following the investigation of the consolidated complaints, 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 on February 4, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its February 4, 2009 final decision, the agency found no discrimination. Without addressing the prima facie case analysis, the agency found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding the harassment claim, the agency found that the evidence in the record did not establish that complainant was subjected to harassment based on sex or retaliation. Specifically, the agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, complainant's first-level supervisor (S1) stated that on December 15, 2008, complainant informed him that a named MSWCD board member (BM) "had made comments to her during an annual IASCD convention which she thought were out of line and that she was not comfortable with. I informed Complainant that the agency would not tolerate sexual harassment or have her exposed to a hostile work environment."1 Specifically, S1 stated that there were general discussions between complainant and the MSWCD board members and "that one point [BM] looked directly at [Complainant] and verbally accused her of being nothing but a pencil and paper pushing bureaucrat."
S1 stated that during the period of January 1, 2007 and April 20, 2008, he estimated "10-20% of my total work hours were spent working on this issue in some shape or form." Specifically, S1 stated that he had discussions with complainant daily and "often as many as ten times per day in an attempt to resolve the complaint. I made every effort to resolve the complaint, protect the Complainant's privacy and rights, diminish her fears, and promote her general well being and safety."
Complainant's second-level supervisor (S2) stated that prior to October 2006, several MCWCD board members, especially BM, complained about NRSC and how we operate as an Agency. Since the District Conservationist (DC) represents NRCS, the comments are made toward the DC. For example, board members believe we over design our irrigation systems, they believe we require too much paperwork of the farmers, they believe we are too slow responding to engineering workload requests from the framers, they believe that SWCD should have more authority on policy and how farm bill programs should be operated." S2 stated the there have been philosophical differences between their District Conservationists and the board going back to October 2009. S2 stated that in July 2007, the board wanted complainant removed from her position as District Conservationist. S2 stated "I declined their request and informed them they di not have the authority to dictate policy to NRCS. Other items the board complained about were technical in nature and I told them Complainant was correct in her actions."
Further S2 stated although BM allegedly apologized to complainant in January 2007, complainant continued to complain that he was hostile towards her. S2 stated that he and S1 "had frequent discussions, meetings, emails, and a substantial amount correspondence with the board chairperson, [BM], and Complainant to get them together to discuss and resolve their issues." S2 stated that in February and March 2007, he "felt the parties would not come together. Complainant expressed her concern about [BM's] hostility towards her. I sent a certified letter to [BM] outlining Complainant's allegations, our attempts to resolve the hostility, and of the NRCS's zero tolerance on hostile work environment. I advised [BM] that he was banned from Complainant's office in Rupert." S2 stated that since complainant informed him that negative comments were being made about her by BM during board meetings, he "made sure either myself; [S1] or [Administrative Officer (AO)] attended the meetings with Complainant. From my participation at the meetings, I did not see any hostile work environment and if I was not able to attend, I always called [S1] or [AO] after the meetings to see what happened at the meetings. I do not recall them reporting on any obvious hostility directed at Complainant during these board meetings."
S2 stated that on two separate occasions he attempted to bring the parties together with the assistance of professional facilitators. S2 stated that the Idaho Soil Conservation Commission provided a facilitator who invited complainant, the entire board, and NRCS personnel to a partnership meeting on May 24, 2007. S2 stated "although a considerable amount of time and effort was expended, this meeting did not resolve the identified issues." S2 stated that in November 2007, he hired a named facilitator to facilitate a meeting to bring all the parties together to resolve the differences. S2 stated that complainant was invited but she decided not to participate. S2 stated that he had S1 check with complainant "three times to make sure she did not want to attend the meeting. I asked why she did not want to attend the meeting and she told her supervisor she did not want to hear the same old complaint about her."
Regarding claim 2, S1 denied complainant's allegation that S2 allegedly pressured her into foregoing her EEO claim and prevented her from pursuing her EEO claim. Specifically, S1 stated that on June 12, 2007, he met with complainant, S2 and AO to discuss complainant's continued complaints about BM. S1 stated that the purpose of the June 12, 2007 meeting was to discuss the continued efforts to resolve complainant's complaint against BM. S1 stated that S2 "reiterated his support for the Complainant stressing that she had his support and that she was our District Conservationist in Rupert and would continue to be. We all stressed the need for the Complainant to continue to perform her job including attending SCD board meetings, which at least one of us would attend with her. We outlined all the activities that we had undertaken to try and resolve the issue and told her we would continue those efforts."
AO stated that a regular MSWCD board meeting was scheduled for June 13, 2007. AO further stated that the day prior to the board meeting, she had a meeting with complainant, S1 and S2 "to discuss the on-going issues between Complainant and [BM]." AO stated that during the June 12, 2007 meeting, S2 told complainant "that they would provide her and other district conservationists with training on work related issues. At no time did [S2] pressure Complainant not to continue her EEO complaint. He reiterated several times that she had his support as the District Conservationist. He did provide her some advice on how to listen more closely when others are speaking."
On appeal, complainant contends that she does not agree with the agency's interpretation of her claims and that she is subjected to ongoing harassment. Complainant further requests that the Commission consolidate the instant complaint with a separate complaint (Agency No. NRCS-2008-00252, EEOC Appeal No. 0120092074) now pending before the Commission "because they are the same related complaint matters, where one event led to the next event or action involving the same individuals. None of these complaints have been resolved to date and the Complainant believes all prior EEO activity caused her employment reassignment and significant changes in her job description."
Disparate Treatment
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).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment.
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the agency's findings. We further note that on appeal, complainant appears to request that the instant complaint be consolidated with her separate complaint which is now pending before the Commission. However, we note that in the separate complaint, the agency issued a decision finding no discrimination and harassment concerning alleged discriminatory events that occurred on September 13, 2007 and November 16, 2007, which differs from the claims raised in the instant complaint. Consequently, we deny complainant's request for consolidation.
In conclusion, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the record evidence does not establish that discrimination occurred.
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
September 24, 2009
__________________
Date
1 The record reflects that BM is a local farmer in Burley, Idaho and is an elected board member of MSWCD. The record further reflects that BM is not a state or federal employee.
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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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