0120092989
08-04-2011
Tina M. Flynn, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Tina M. Flynn,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120092989
Hearing No. 470-2008-00103X
Agency No. F-07-6275
DECISION
Complainant filed an appeal from the Agency’s June 3, 2009 Final Order
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. For the
following reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Intelligence Analyst at the Agency’s facility in Indianapolis,
Indiana. On December 29, 2006, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of race
(African-American), sex (female), and reprisal1 for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
1. Complainant was not provided transportation while on assignment
in Virginia, from September 6, 2006, to September 27, 2006.
2. In October and November 2006 during temporary duty, Complainant
was subjected to harassment including inappropriate comments and
conduct-with racial overtones, including the simulation of a crime scene
near her work area, as well as dumping of trash in and around her office.
3. Complainant was subjected to harassment based on reprisal that
included the following incidents:
a. Complainant was forced to work after normal hours to
finish work assignments that were assigned late and reprimanded
for not attending lunch with peers and asking questions of staff.
b. Complainant was not allowed to attend meetings nor
allowed to take part in team assignments;
c. Complainant was not provided the opportunity to attend
training for professional growth;
d. Complainant was not allowed to speak to her supervisor in
private in order to discuss harsh and negative criticism concerning
her work
e. Complainant was overseen by many individuals, including
coworkers, but was never advised as to who her supervisor was;
f. Complainant was classified to an offsite office and
instructed to only return to the Agency Indianapolis field office
for four hours and to only check her electronic mail messages;
g. Complainant did not receive guidance regarding job
expectations, feedback on her performance or a warning on her
appraisal report; and
h. On June 22, 2007, Complainant was terminated from her
employment with the Agency.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing and the AJ held a hearing on July 23, 24 and
25, 2008, continued to February 10, 11, 12 and 13, 2007. Thereafter,
the AJ issued a decision on April 23, 2009.
In his decision, the AJ found that Complainant was hired in July 2006
as an Intelligence Analyst by the Agency. After initial training
that lasted two months, Complainant attended additional training in
Vienna, Virginia. Complainant was instructed, along with the other
newly recruited employees, to provide her own transportation if she did
not intend to stay at the hotel across from the training site. AJ’s
February 13, 2009 Decision (AJ’s Decision) at 17, 18. Complainant,
the AJ observed, elected to stay at a different hotel within a 20 minute
walk of the training site. Id. Complainant experienced difficulties
arranging transportation during the training and so, she complained
to her training supervisor and asked for an Agency vehicle to use.
The AJ found that other employees also staying at the same hotel
as Complainant, who likewise did not bring their own transportation,
walked to the training site from their hotel. Id. at 18. The AJ found
that Complainant failed to show that she suffered any material loss or
adverse action as a result of not being supplied with transportation
during this training. Id. at 64. Even assuming she had, the AJ found
that Complainant failed to identify any similarly situated employees,
not in her protected groups, who received preferential treatment. Id.
On the contrary, the AJ found that a male, White employee Complainant
identified was not similarly situated because he possessed a Bureau
license, while Complainant did not. Id. at 65.
The AJ further observed that Complainant failed to establish a prima
facie case of reprisal discrimination, and failed to establish a prima
facie case of discrimination based on her sex, or race with respect to
the harassment claims of her complaint. Id. at 61; 71. Specifically,
the AJ found that the incidents of November 2006, (claim (2) inappropriate
comments with a racial undertone; Complainant’s temporary duty workspace
and an adjacent work space were littered with trash and crime scene tape,)
were not so severe or pervasive that they rose to the level of harassment.
Id. at 71. The AJ did not find that the events Complainant described
were so violent, humiliating or offensive as to unreasonably interfere
with Complainant’s work performance. Id. at 72. Even if Complainant
had established that the group of incidents was harassment, the AJ found
that Complainant presented no evidence that her race, sex or prior EEO
activity prompted the incidents. Id.
Further, the AJ found no relationship between the events in November
2006 and the events that occurred in Indianapolis when she returned from
temporary duty (claim (3)). These incidents, the AJ found, represented
discrete personnel actions over six months that Complainant did not show
were motivated by her sex or race. Id. at 74. Additionally, the AJ found
that Complainant did not show that other probationary employees, not in
her protected classifications were treated any better than she was. Id.
With respect to claim (3) insofar as it is alleged based on reprisal,
the AJ found that Complainant failed to establish the required
connection between her protected activity and the actions she claims
were discriminatory. The AJ observed that when Complainant returned
from training in Vienna, she reported the incidents described in claim
(1) and (2) to her supervisors. Complainant’s supervisor contacted
the EEO coordinator to assist Complainant, the AJ noted, with filing an
EEO complaint. In the course of doing so, the AJ observed, Complainant
explained that she had taken photographs of the ‘crime scene’
creation in Vienna with a cellular telephone camera. Id. at 78. The AJ
considered evidence that Complainant had taken photographs in a secure
location which action was sufficient to warrant termination of an employee
during probation despite her contact with the EEO coordinator. However,
instead of terminating her employment, Complainant was protected. Id.
The AJ found the evidence did not support Complainant’s allegations.
For example, the AJ found that it was Complainant who isolated herself
from her co-workers, and that Complainant was encouraged to take training.
Id. at 81. The AJ concluded that Complainant failed to establish the
requisite nexus between her prior protected activity in December 2006 and
the incidents of harassment of which she complained in claim (3). Id. at
81 et seq. The AJ observed that many if Complainant’s allegations were
true regarding, for example, her assignment to an off-site location,
to being instructed to only report to headquarters for four hours for
electronic mail messages; and that Complainant’s immediate supervisor
only met with Complainant with the door open. Id. at 84. However,
the AJ found no evidence that Complainant was treated any differently
than other employees and found that Complainant presented no evidence
that the Agency’s actions were motivated by reprisal. Id.
Regarding Complainant’s termination, the AJ noted that Complainant was
terminated for the reasons stated in a letter between Complainant’s
supervisors dated March 15 2007, which letter preceded Complainant’s
2007 amendments to her complaint. In that letter, Complainant’s
supervisor cited Complainant’s conduct with co-workers, and especially
Complainant’s belief that her co-workers were conspiring against her,
as the reasons the Agency decided to terminate Complainant during her
probationary period. Id. at 85, 86. The AJ concluded that the Agency
provided legitimate, non-discriminatory reasons for its actions. Further,
the AJ found that Complainant did not show that she was singled out
because of her EEO activity. Accordingly, the AJ found that the evidence
did not show that Complainant was subjected to discrimination as alleged.
The Agency subsequently issued a Final Order, in which the Agency
adopted the AJ’s finding that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the AJ improperly found that she
failed to establish the required causal connection between her prior EEO
activity and the Agency’s adverse actions, including the Agency’s
decision to terminate her during probation. Complainant’s Appeal of
Final Agency Decision, August 5, 2009.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (November
9, 1999).
To prevail in a disparate treatment claim such as this, 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 he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
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. Soc. Sec. 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. Dep’t of
Veteran Affairs, EEOC Request No. 05960473 (Nov. 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. Dep’t of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we find the substantial evidence supports the
AJ’s decision and we decline to disturb the AJ’s findings on appeal.
Specifically, we find the evidence shows that Complainant suffered no
loss of pay, performance rating, leave or other impact to the terms and
conditions of her employment sufficient to render her aggrieved when
her request to be assigned an Agency vehicle was denied while assigned
to temporary duty in claim (1). We further concur with the AJ that
Complainant failed to identify any similarly situated employees, not in
her own protected classes who received preferential treatment.
We further find the AJ properly concluded that the incidents described
in claim (2), were not so pervasive or severe as to rise to the level
of harassment. We further find the AJ properly concluded that nothing
in the record indicates that Complainant’s race or sex played any role
in the incidents of which Complainant complained in claim (2).
Regarding claim (3), we consider Complainant’s contentions that her EEO
activity continued after her initial meeting with the EEO Coordinator in
December 2006. We will assume for the sake of argument, that Complainant
established a prima facie case of reprisal discrimination with respect to
the incidents described in claim (3). Even so, we find the AJ properly
found that the Agency articulated legitimate, non-discriminatory
reasons for its actions. For example, we do not find, as Complainant
contends, that she was in essence, terminated during probation based
on her performance. We note that the Agency described Complainant’s
security breach (Complainant’s use of a cell phone camera in a secure
area) as a factor contributing to the Agency’s decision to terminate
Complainant’s employment during probation and that this violation
alone could have supported the Agency’s decision, occurring as it did
during probation.
Complainant notes, as did the AJ, that Complainant’s performance
garnered her praise and positive assessments at various junctures
for completion of certain projects and achievements. We find that
Complainant has not rebutted the Agency’s explanation in its letter
of termination that Complainant failed to show a grasp of some concepts
included in her basic training, for example, deductive and inductive
reasoning. We find nothing in the record indicates the Agency’s
articulated reasons for terminating Complainant were false or a pretext
for race, sex or reprisal discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the Agency’s Final Decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 4, 2011
__________________
Date
1 By letter dated May 4, 2007, Complainant added reprisal as a basis of
her second harassment claim (3). Complainant later amended her complaint
a second time to add termination after she was separated from her position
in June 2007.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120092989
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092989