0120054823
11-15-2006
Terri L. White,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200548231
Agency No. 020806
DECISION
Complainant filed an appeal from the agency's May 31, 2005 final decision
concerning her equal employment opportunity (EEO) complaint claiming
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
On September 13, 2002, complainant, a County Executive Director,
CO-09, at the agency's Farm Service Agency in Belzoni, Mississippi,
filed a formal complaint. Therein, complainant claimed that she was
discriminated against in reprisal for prior EEO activity when:
1. on June 3, 2002, her request for approval for a thirty (30) day
assignment in the New Leader Program, to run concurrently with the County
Operation Training Program assignment (COT) was denied;
2. on June 5, 2002, her request for reimbursement for telephone calls
made to her family while she was in travel status was denied; and
3. on August 5, 2002, her name was excluded from the eligible list for
five (5) County Executive Director (CED) positions.
At the conclusion of the investigation, complainant was informed of
the right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
The record reflects that complainant initially requested a hearing,
but that the request was subsequently withdrawn. The agency thereupon
issued the instant final agency decision.
In its May 31, 2005 final decision, the agency found no discrimination.
Without addressing whether complainant established a prima facie case
of reprisal discrimination, the agency found that management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext for discrimination.
Regarding complainant's harassment claim, the agency found that
complainant failed to prove that she was subjected to harassment
sufficiently severe or pervasive so as to render her work environment
hostile.
Regarding claim 1, the record reflects that in her complaint, complainant
stated that in February 2002, she began both the New Leader Program
(NLP) and the COT program. Complainant stated that according to an
agency Administrative Officer, once trainees complete COT assignments,
they could submit a request for a shortened training period based on
their prior experience with the agency. Complainant stated that during
her 30-day NLP assignment, she requested permission to work in the
Wayne County Office for two weeks, and then work in the state office.
Complainant states, however, that she was advised by a State Office
Conversation and Compliance Specialist that complainant was needed in
the state office for the entire thirty-day period. Complainant stated
that during the relevant time, she broke her leg which required surgery;
and was out on sick leave for two weeks and two days. Complainant
stated that she and a District Director decided on a Farm Loan Program
assignment in order for her to complete the thirty-day NLP assignment by
the end of June 2002. Complainant stated that her supervisor did not
approve her FLP request because the State Office wanted her to draft a
proposal for a proposed statewide digitizing center. Complainant stated
that during the relevant time she worked on the proposal while other
trainees were provided an opportunity to choose their NLP assignment.
Complainant claimed that she received different treatment as compared to
other NLP and COT participants because of her prior protected activity
which had allowed her entrance into the COT program.2
An Administrative Officer, who also served as complainant's COT Training
Coordinator, (AO) stated "I do not agree with the terminology that I
'denied' the assignment." The AO further stated that he and complainant
discussed several options, and that he thought they reached full agreement
as to what complainant's assignment would entail. Specifically,
the AO stated "being that the Complainant was desiring to mix County
Office Trainee (COT) training and NLP training, and the requested Farm
Loan training was to satisfy the NLP thirty-day assignment, I simply
felt it was a waste of time and would extend complainant's COT FLP
training segment." The AO stated. However, that complainant sought
input from the State Office concerning a thirty-day assignment. The AO
stated that the State Office suggested that complainant work in the
Conversation/Compliance Division which complainant "expressed initial
interest; she looked into it and wasn't really sold on it." The AO
stated that complainant was then on sick leave due to a broken leg.
The AO stated that during the relevant time, complainant contacted
her former District Director and that they proposed an assignment that
dealt with the Farm Loan Program. The AO stated that the assignment
consisted of two weeks of FLP training in her county and two weeks at a
later date in a different county. The AO stated that he felt that the
proposed assignment "would add unnecessary time to the complainant's COT
training. Training that she had been trying to shorten since she started.
It should be noted her original COT training plan required only two
weeks on the FLP program." Specifically, the AO stated that he wanted
to prevent extending complainant's COT training program and provide her
invaluable experience managing a county office which would satisfy her
requirement under the NLP's thirty-day assignment. Furthermore, the AO
stated that complainant's prior protected activity was not a factor in
his determination to deny her request her request for a 30-day assignment
in the NLP to run concurrently with the COT program assignment.
The record reflects that the District Director (DD) stated that at the
time complainant requested a thirty-day assignment to the NLP to run
concurrent with the COT program, the state needed someone to research
information for and possibly set up a digitizing center for Mississippi.
The DD further stated that the AO informed him that he believed this
"would be an excellent NLP assignment for [Complainant], would be
beneficial to the State, and could be done at her home county while she
recovered from a broken ankle." The DD stated that the AO asked him to
recommend this assignment to complainant.
With respect to complainant's claim that she was discriminated against
on the basis of reprisal for prior protected activity when the AO denied
her thirty-day assignment in the NLP to run concurrently with the COT
program assignment, the DD stated "I will state emphatically that I do
not believe [AO's] decisions were due to [Complainant's] EEO activity.
Regarding claim 2, the record reflects that complainant's supervisor
stated that because he was responsible for complainant's travel claims,
he denied complainant's request for reimbursement for telephone calls
made to her family while on travel because she provided no receipts.
Specifically, the Supervisor stated "based on clarification of travel
regulations from [AO] where he indicated that receipts were required
for all reimbursable phone calls, I did deny [Complainant's] request."
With respect to complainant's assertion that several identified employees
were reimbursed for making telephone calls while in travel status,
the Supervisor stated that none of the identified employees were under
his supervision. Specifically, the Supervisor stated that since the
identified employees "were not under my supervision I do not know if
these persons provided receipts for their telephone usage."
The record further reflects that the DD stated that complainant's
supervisor denied complainant's request for reimbursement because
complainant had no receipts. The DD further stated that there was
"much confusion existed at that time as to whether receipts for such
calls were required." The DD stated that after he and the Supervisor
discussed reimbursement for telephone calls, he referred the Supervisor
to the AO for guidance. The DD stated that "some CED's approve travel
without questioning it, while [Supervisor] sought guidance to ensure
compliance with regulations." Furthermore, the DD stated that he did
not believe that either the Supervisor or AO "would, by any stretch of
the imagination, have used [Complainant's] EEO activity as criteria for
any denial of reimbursement."
The record contains the EEO Counselor's Report dated October 10, 2002.
Therein, the EEO Counselor stated that complainant was reimbursed for
telephone calls she made to her family while on travel.
Regarding claim 3, the record reflects that the State Executive Director
(SED) stated that on October 7, 2002, he sent a letter to complainant
informing her that because she was not within thirty calendar days
of completion of the COT program, she could not be certified as an
eligible candidate for the five vacant CED positions. Furthermore,
the SED stated that he did not discriminate against complainant based
on her prior protected activity.
With respect to complainant's claim assertion she was not allowed to
complete her assignments, the SED stated that complainant was not allowed
"to simply complete her written assignment and interview because that
was not all of the training that was required of the complainant to
complete the COT training program. In addition, it was not all that
was required of the other COT trainees either."
The record further reflects that the DD stated that complainant's name
was excluded form the eligible list for five vacant CED positions because
she was not within thirty calendar days of completion of the COT program
she could not be certified as an eligible candidate for the five vacant
CED positions. Specifically, the DD stated that the AO informed him that
complainant could not be certified as an eligible candidate for the five
vacant positions. The DD stated that the AO "reviewed with me a chart
in which he had listed the training progress of all COT's on board with
[complainant]. To me the chart clearly indicated that [complainant]
was not within the 30-day procedural guidance of certification."
The DD stated that at no point did the AO indicate that the reason
for his decision had anything to do with complainant's prior protected
activity.
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).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not shown that
the agency's articulated 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).
Applying these principles to the facts in this case, we concluded that
the record does not support a determination that the alleged incidents
constitute a discriminatory hostile work environment.
Accordingly, the agency's final decision finding of no discrimination
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 15, 2006
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record reflects that complainant entered into a settlement agreement
with the agency in January 2002, which settled a previous complaint filed
by complainant. As part of this settlement agreement, the agency agreed
to place complainant in the COT program effective February 2002.
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0120054823
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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