0120090372
05-06-2010
Van M. Andrus, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Van M. Andrus,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120090372
Hearing No. 560-2007-00140X
Agency No. 9V1M05268TF08
DECISION
On October 22, 2008, complainant filed an appeal from the September
17, 2008 final agency decision (FAD) 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 deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Nondestructive Tester at the Tinker Air Force Base in Oklahoma.
On June 9, 2005, complainant filed an EEO complaint alleging that she
was discriminated against and subjected to a hostile work environment
on the basis of reprisal for prior protected EEO activity when:
1. In late 2004 or early 2005, her immediate supervisor (S1) made
threats regarding her job after he would assume more authority with the
implementation of the National Security Personnel System (NSPS);
2. S1 often spoke to her in mean and aggressive tones;
3. Management disregarded her medical issues and provoked her into
getting upset;
4. On April 21, 2005, she was issued her 2004-2005 Civilian Rating of
Record, which was lower than she felt she deserved;
5. On April 28, 2005, she was informed that she was medically disqualified
from employment at Tinker Air Force Base1; and
6. Management failed to document and provide credit for her detail to
the Plasma Shop from April 1-28, 2005.
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). Complainant timely
requested a hearing but subsequently withdrew her request. As a result,
the agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). Initially,
the FAD found that complainant had alleged three discrete employment
actions that were also part of the alleged harassment claim (claims
(4), (5), and (6)). As to those claims, the FAD held that the agency
had articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, as to claim (4), S1 asserted that he rated complainant
based on his observations of her performance and conduct during the
rating cycle. As to claim (5), S1 claimed that complainant had been
on limited duty for much of January 2003 through February 2005, and at
some point complainant told him that her doctor said her restrictions
were permanent. Consequently, S1 initiated the paperwork to place her
in the "medically disqualified program." Finally, as to claim (6), S1
and complainant's second-level supervisor (S2) stated that complainant
was not detailed; rather she was loaned temporarily to help the Plasma
Shop catch up with its work. The FAD found that complainant failed to
show that the agency's reasons were pretextual and therefore had not
been discriminated or retaliated against as alleged.
As to complainant's hostile work environment claim, the FAD found that
the alleged incidents were not sufficiently severe or pervasive to rise
to the level of a hostile work environment. Accordingly, the decision
concluded that complainant failed to prove that she was subjected to
discrimination, retaliation, or harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant denies ever telling S1 that her restrictions were
permanent. Further, complainant asserts that she was found innocent
of the "horseplay" incident referenced in her appraisal therefore
the adverse effects of this incident on her appraisal were unjust.
Accordingly, complainant requests that we reverse the FAD. The agency
responds that the arbitrator's opinion regarding the horseplay incident
was not issued until a year after the appraisal was issued. Further, the
agency points out that S1 stated that he also considered complainant's
excessive cell phone use and excessive visiting with her co-workers
in lowering her rating. Finally, the agency argues that the Employee
Relations Specialist (ERS) confirmed that employees with permanent or
temporary medical limitations that exceed six months and prevent them
from performing the full range of duties and essential functions of
their position are identified into the medical placement program for a
base-wide job search for alternate placement. Thus, the agency requests
that we affirm the FAD.
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").
Disparate Treatment (Reprisal)
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby a complainant must
first establish a prima facie case 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. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); 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. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, the burden reverts back to complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
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, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (4),
S1 asserts that the promotion appraisal scores he assigned complainant
were the same scores she received the previous year except in Work Effort,
Working Relationships, and Work Productivity. ROI, S1's Aff. at 2.
S1 avers that complainant's ratings were lowered in these factors because
of her excessive cell phone usage at points during the rating period,
one incident of horseplay for which she was disciplined, and the negative
impact these and other incidents had on her work productivity. ROI,
S1's Aff. at 2-3. S2 maintains that complainant's performance ratings
were based on her performance throughout the entire rating period and she
believed the ratings accurately described her performance. ROI, S2's
Aff. at 2-3. S2 adds that complainant's rating could have been lower
considering her misconduct and the effect it had on her productivity.
Id. at 3.
As to claim (5), S2 avers that agency regulations provide that an
employee may be placed in the medical placement program if they have
temporary or permanent restrictions that exceed six months. ROI, S2's
Aff. at 3. S1 asserts that due to the length of time complainant was
on medical restrictions, and because complainant at one point told him
that her doctor considered the restrictions permanent, he initiated the
paperwork to place complainant in the medical placement program. ROI,
S1's Aff. at 3-4. S1 adds that when complainant submitted documentation
from her doctor indicating that she could work with no restrictions, he
returned complainant back to her regular duties. Id. at 4. S1 asserts
that this was his first time dealing with the medical placement program
and once he became aware that it was his responsibility to terminate the
paperwork, he took action to remove her from the program. Id. S2 adds
that to her knowledge, at no time was complainant medically disqualified
from her position and the intent of placing complainant in the medical
placement program was to find her a position commensurate with her
long-standing and ongoing medical limitations, not to get rid of her.
ROI, S2's Aff. at 3-4.
As to claim (6), S1 stresses that complainant was not detailed to the
Plasma Shop; rather, she was loaned temporarily to assist them in catching
up with a backlog. ROI, S1's Aff. at 5. S2 adds that if complainant
believed she should receive credit for performing these duties, she
could coordinate with the supervisors of the Plasma Shop to have the
experience documented in her personnel folder. ROI, S2's Aff. at 4.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). We find
that aside from complainant's bare assertions, the record is devoid of
any persuasive evidence that discrimination was a factor in any of the
agency's actions. At all times the ultimate burden of persuasion remains
with complainant to demonstrate by a preponderance of the evidence that
the agency's reasons were not the real reasons, and that the agency
acted on the basis of discriminatory animus. Complainant failed to
carry this burden.
Accordingly, we find that complainant has failed to show that she was
discriminated against or retaliated against as alleged.
Hostile Work Environment
It is well-settled that harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
religion or in reprisal is unlawful, if it is sufficiently severe or
pervasive. Hurston v. United States Postal Service, Appeal No. 01986458
(January 19, 2001), (citing Wibstad v. United States Postal Service, EEOC
Appeal No. 01972699 (August 14, 1998)). To establish a prima facie case
of hostile work environment, a complainant must show that (1) s/he belongs
to a statutorily protected class; (2) s/he was subjected to harassment
in the form of unwelcome verbal or physical conduct because of her/his
protected class; (3) the harassment complained of was based on her/his
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. See 29 C.F.R. � 1604.11; Davis
v. Army, EEOC Appeal Nos. 01A24469, 01A20558 (November 14, 2003).
Complainant must show that the actions complained of were taken because
of or based on her protected status and are sufficiently patterned
or pervasive; usually, a single incident or a group of isolated,
discrete incidents will not be regarded as discriminatory harassment.
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
A hostile work environment exists "when the workplace is permeated with
discriminatory intimidation, ridicule and insult that is sufficiently
severe or pervasive to alter the condition of the victim's employment."
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). An alteration
to an employee's working conditions exists if a tangible, discrete
employment action is taken, e.g., hiring, firing, transfer, promotion,
non-selection, or the agency's actions were sufficiently severe and/or
pervasive to create a hostile work environment.
As to claim to claim (1), S1 states that he has never threatened
complainant's employment at any time and only briefed all of his employees
as a whole regarding a supervisor's authority under the NSPS to keep
them informed. ROI, S1's Aff. at 4. Finally, regarding claims (2) and
(3), S1 denies talking to complainant in mean or aggressive tones and
asserts that his intention was to accommodate complainant's limitations
to the extent possible. Id.
We conclude that complainant did not prove that she was subjected
to conduct sufficiently severe or pervasive to create a hostile work
environment and that she also failed to prove the agency's decisions
and actions were unlawfully motivated by her prior protected activity.
Even if we assume that the alleged actions would be sufficiently severe or
pervasive to constitute a hostile work environment, there is insufficient
evidence that any of the actions were motivated by
discriminatory animus. Accordingly, complainant has not shown that she
was subjected to a retaliatory hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if 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
May 6, 2010_______________
Date
1 We note that complainant did not allege that she was discriminated
based on a disability or raise any claims under Section 501 of the
Rehabilitation Act of 1973 as amended, 29 U.S.C. � 791 et seq.
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0120090372
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090372