0120082820
12-21-2011
Veda J. Lamar-Garth, Complainant, v. Alonzo L. Fulgham, Acting Administrator, Agency for International Development, Agency.
Veda J. Lamar-Garth,
Complainant,
v.
Alonzo L. Fulgham,
Acting Administrator,
Agency for International Development,
Agency.
Appeal No. 0120082820
Agency No. EOP-05-16
DECISION
Complainant filed an appeal from the Agency’s May 7, 2008 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. For the
following reasons, the Commission AFFRIMS the Agency’s decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Supervisory Communications Specialist, grade level GS-15,
in the Agency’s Bureau for Economic Growth, Agriculture and Trade
(EGAT), Office of Program Analysis Communication and Outreach (PAICO),
Communications Knowledge Management Team (CKM) in Washington, D.C.
Complainant filed an EEO complaint dated September 12, 2005, alleging
that the Agency had discriminated against her when:
1. In August 2005, Complainant was subjected to unequal terms and
conditions of her employment on the basis of her race (African American)
when the Office Director of EGAT/PAICO, who was Complainant’s
supervisor, failed to adhere to the Agency’s Annual Evaluation Form
(AEF) Procedures.
2. From July 2005 to August 2005, Complainant was subjected to a hostile
work environment based on her race when her supervisor created an
untenable management environment by: usurping Complainant’s authority
with subordinates; speaking to Complainant in a condescending and hostile
manner; threatening Complainant with termination; participating in office
gossip and hearsay and creating an environment ripe with hostility;
and disparaging Complainant’s military service and background in the
presence of a subordinate.
3. On August 30, 2005, Complainant’s supervisor terminated
Complainant’s employment based on race and reprisal for prior EEO
activity.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ) in
a letter dated September 20, 2006. There is no evidence that a hearing
was requested. The Agency subsequently issued its May 7, 2008 decision
in which it concluded that the Agency had not discriminated against
Complainant.
In its decision, the Agency concluded that Complainant had not established
a prima facie case regarding the Agency’s failure to adhere to AEF
(evaluation) procedures. The Agency also noted that Complainant failed
to show that she had been subjected to an adverse action for which others
outside her race were treated differently. Regarding claim 2, the claim
of a hostile working environment, the Agency found that Complainant
failed to show that she was subjected to discriminatorily severe and
pervasive conduct by the Agency. Regarding claim 3, Complainant’s
termination, the Agency found that Complainant had established a prima
facie case based on race and reprisal but that Complainant failed to
show that the rationale offered by the Agency for its termination was
pretext to mask illegal discrimination. The Agency concluded that it
terminated Complainant because of her management style and her failure to
demonstrate the managerial and supervisory skills required for performance
in her position.
Complainant’s August 29, 2005 notice of termination discloses that
on September 19, 2004, she received an “initial career-conditional”
appointment as a Supervisory Communications Specialist. F3a at 1-2. In
the notice, Complainant was informed by the Chief, M/HR/POD that it was
her decision to terminate Complainant during her probationary period.
The Chief stated that the reason for Complainant’s termination during
probation was that she had failed to demonstrate the required skills
and abilities that would warrant her continued employment. The notice
specifically identified Complainant’s “autocratic” supervisory
style and the “micromanagement” of her subordinates and noted
that Complainant’s style inhibited the cohesiveness and damaged the
productivity of her work group. Id.
The Complainant began working for the Agency as a Supervisory
Communications Specialist on September 20, 2004. Ex. F7 at 38.
Complainant’s affidavit reflects that she had worked for the Agency from
January 2004, to September 18, 2004, while awaiting security clearance.
Ex. F31 Complainant stated that a previous supervisor (S1), a former
Director of EGAT/PAICO, had supervised her for 18 months prior to the
arrival of the supervisor under whose supervision she was terminated.
Ex. F4.
In her affidavit, Complainant noted that her supervisor violated Office
of Personnel Management (OPM) Regulation 2302 which, she indicated,
provided that any employee who has authority to take, direct others
to take, recommend, or approve any personnel action, shall not do so
through hearsay or discriminatory practices. Ex. F3. She stated that
her supervisor provided documents to Human Resources (HR) to validate
his basis for her termination stating that he had given her a formal
360 evaluation although he had not in fact done so. Id. Complainant
stated in her rebuttal that her supervisor first stated to HR that he
had provided a 360 evaluation but was now claiming that his evaluation
was not formal and that he was not required to follow the 360 process.
Ex. F4. Complainant stated further that the proper procedure for the
360 feedback process was for her supervisor to speak to her one-on-one
and collect a list of staff members, including lateral, subordinate and
superior staff, to establish a fair assessment of her work performance.
Ex. F3.
Complainant stated that two employees (E1, E2) selected by her
supervisor to provide 360 feedback, had previously been counseled by her
for insubordination and/or lack of productivity and their comments were
quoted in the termination letter. Id. She stated that E1’s contract
was renewed with the Agency and E2 had been promoted. Complainant noted
that E2 came to EGAT at a grade level GS-13 in October 2004, was promoted
to a GS-14, and given a temporary FS-1, the equivalent of a GS-15,
within six months of obtaining a GS-14. She also stated that since her
termination, E2 had received another promotion.
Complainant stated that her supervisor did not follow any of the
procedures set by HR to provide her with feedback for the duties,
responsibilities, and requirements of the position nor the evaluation of
her supervisory/managerial performance by July 19, 2005. Id. She further
stated that at no time did her supervisor meet with her one-on-one
to discuss her work objectives or supervisory/managerial performance.
She also stated that her supervisor met with the other two team leaders
but not with her to discuss projects and expectations. Complainant stated
that her supervisor also did not discuss the excellent evaluation that
she had received from a previous supervisor (S1) and that he did not
include it in the package that he sent to HR. She stated further that
her supervisor did not include a positive statement about her performance
in the package that he had sent to HR. Id.; F4. Complainant stated
that her supervisor never had a single conversation with her to assess
her performance and provided draft work objectives to her through the
office’s Administrative Assistant, although he met with the other two
team members. Ex. F3; Ex. F4.
Complainant stated that after her supervisor’s arrival, she had a
meeting with him around July 20, 2005, to discuss a personnel issue
and a “preliminary meeting” with him on July 23, 2005. Ex. F3.
She stated also that as part of his in-processing, her supervisor met with
all three team leaders and she provided him with a Memorandum outlining
the achievements of her team during her year and a half and that after
“scanning” it briefly, he asked her about a team staff member who
had resigned prior to his arrival. Ex. F3; Ex. F4.
Complainant also stated in her affidavit that she met with E1 and her
supervisor on July 25, 2005, at her request. Concerning the meeting
with E1, Complainant stated her supervisor was “extremely hostile.”
Id.; Ex. B1 at 16; Ex. F6 at 8. She also stated in her affidavit that
at one point during the meeting regarding the need for E1 to complete
a task list involving his areas of responsibility, her supervisor spoke
to her in a “gruff” manner saying that if he were E1, he would not
want to complete the list either. Ex. F3. Complainant stated that her
supervisor also told E1 in her presence that Complainant did not have
to sign his invoice for payment of his services. Id. She explained in
her complaint that she asked E2, who she stated worked two to three days
at home, why he did not want to use the Project Tracker to log in his
projects, why he did not want to provide copies of his expense invoice,
and why he had missed deadlines that she had assigned him for various
projects. Ex. B1 at 16-17; Ex. F6 at 8.
Also concerning the meeting with E1 and her supervisor, Complainant
stated that her supervisor also stated during the meeting that he did
not care what she had to say. Ex. F3. She stated further that after
the meeting, she wrote a letter to the Acting Assistant Administrator
to follow-up on their previous conversation and to inform him of the
hostile work environment that her supervisor was creating with her staff.
Ex. F6 at 8; Ex. F3.
Complainant stated that her last conversation with her supervisor was on
the date that she and E1 met with him. She also noted in her affidavit
that following a review of the office portfolio review, her supervisor
invited two other team leaders and select team members to a celebration at
a restaurant in the building and she was the only team leader not invited.
Ex. F3.
Regarding a team retreat, Complainant stated in her affidavit that the
purpose of the retreat was held for team planning and not to discuss
her management style. Ex. F3.
Complainant stated that in a discussion with the Training Resources Group
(TRG) Consultant (TRG Consultant) following the retreat, she learned
that senior management was eligible to be assigned an executive coach.
Ex. F4. She stated that she requested assignment of a coach and S1
approved her request. Complainant stated further that coaching was a
service that was provided to any senior staff member upon request.
Complainant stated in her affidavit that she requested documentation from
HR regarding her termination and she was sent copies of electronic mail
messages of E1, E2, S1, S2, and Employee A. Ex. F3 at 6. She further
stated that she later learned that she had received a positive statement
from an African-American Education Communications Specialist (ECS) with
whom her team had worked closely. Complainant stated that the ECS’s
statement was not included by her supervisor in his submission to HR.
She also stated in her rebuttal that her supervisor had not asked for
feedback from three other members of her staff. Ex. F4. She stated
that after she was terminated, an electronic mail was sent by her
supervisor assigning Employee B, a White male, to her position in an
acting capacity. Id.
Complainant stated that her supervisor’s hostility “escalated” when
he became aware that she would be a witness in an EEO matter. Ex. F3.
The record reveals that Complainant received an evaluation rating of
“excellent” for the period from September 20, 2004, to December 31,
2004, from S1. Ex. B1 at 10. The evaluation discloses that Complainant
did not receive a mid-cycle review of her work objectives. The evaluation
also discloses that the end-of cycle evaluation of “excellent” was
signed by S-1 on February 25, 2005, and by Complainant on March 1, 2005.
The evaluation described Complainant as a “consummate professional”
who brought excellent experience in public relations and communications
to the Agency; that she had been mastering a steep learning curve since
joining the Agency; that she had faced the challenging role of team leader
with a skeletal and inexperienced team; and that she was beginning to
build a strong, professional staff with the right set of skills to meet
AA/EGAT’s visions of communication and knowledge management for the
Bureau.2 The evaluation also noted that Complainant’s team found her
to be experienced and energetic and she was working daily with staff to
build a sense of purpose and to define individual and team work plans and
develop products. The evaluation also indicated that in the relatively
short time that Complainant had been with EGAT, she had improved
communication and brought a new level of professionalism to Bureau events.
The evaluation had only two objectives and Complainant was rated
excellent on each. The work objectives included providing supervision
and leadership to establish a cohesive and functional team and improving
communication between EGAT offices and team. The evaluation noted
that when Complainant began as the team leader, she was faced with a
skeletal staff and four vacancies. The evaluation also reveals that
while the newly created team did not yet have a vision, a mandate or
plan of action, Complainant had established herself as a team leader.
The evaluation also discloses that Complainant maintained the discipline
to hold weekly team meetings and to send forward a communication agenda
and to discuss progress by the team.
The record contains a January 18, 2005 electronic mail which reveals
that the EGAT/AA had approved the “nomination” of Complainant to
the Leadership/Executive Development Course for June 5 to June 17, 2005.
Ex. F7 at 27.
The record contains a September 1, 2005 letter from Employee C to
Complainant. Ex. F4 at 4. In the letter, Employee C, who noted that
he had worked with and for Complainant, that he was “troubled and
perplexed” when he learned that Complainant was terminated from her
employment as a CKM team leader. Employee C stated further that he
found working for Complainant to be an “extreme pleasure.” Id.
He also stated that Complainant established a marketplace for ideas
to flourish and that her own ideas did not have to take dominance.
Employee C also stated that Complainant went out of her way to
give recognition to her team members over herself. He noted that
this ability of Complainant was the mark of a very secure person and
that secure persons made exceptional leaders. Employee C described
Complainant as a compassionate person and one who conveyed enthusiasm
for ideas and serious discussion. Id. He also stated that Complainant
had some of the most important management skills that were in short
supply in the workplace, not only within the Agency. Employee C stated
that Complainant encouraged staff to come up with new ways of solving
problems and that he always felt that his thoughts and those of the
other team members would be welcomed by Complainant and would get an
honest hearing and fair evaluation. Employee C noted that Complainant
had a sense of humor and that it made all the difference in the world
of interpersonal dynamics and easing the pressures of work. He ended
his letter by saying he was disheartened about the unfortunate turn of
events and that he meant what he had written sincerely.
Contained in the record is the affidavit of a GS-14 Program Analyst (on
the team of and supervised by S2). Ex. F-10. She stated that on one
occasion she had had the opportunity to work together with Complainant
on the same activity of designing a financial database for the Bureau.
The Program Analyst stated that they attended meetings during the design
and information gathering phase of the project. She stated that she
heard subordinates complain that Complainant’s supervisor held closed
door meetings with Complainant’s subordinates and that she noticed
that many of the meetings did not include Complainant. The Program
Analyst also stated that on occasion, she overheard Complainant’s
subordinates making unprofessional remarks about her to the previous
Office Director. She stated that she overheard one of Complainant's
subordinates discussing time and attendance with the prior PAICO Office
Director and that shortly thereafter Complainant was fired. She stated
that she was “personally told” by the “Acting Director of EGAT”3
that Complainant’s subordinates did not like her. Id. The Program
Analyst also stated that she had attended a meeting when the “prior
Office Director”4 created a “hostile environment” for other Black
PAICO staff and it was her feeling that the practice was passed on and
continued by Complainant’s supervisor. Id.
In his affidavit, Complainant’s supervisor stated that when he
joined EGAT/PAICO as its Director on July 18, 2005, he held a general
staff meeting. Ex. F5. On July 19, 2005, he held a meeting with
the office’s three team leaders, including Complainant, and met
with Complainant and others on July 20, 2005, concerning a “staffing
issue” on Complainant’s team. He also stated that he met one-on-one
with Complainant on July 25, 2005, concerning team expectations, goals,
and on-going tasks and that he met with other team leaders to discuss the
same issues. He stated also that while he may have met more frequently
with other team leaders, the frequency was to address specific work issues
which the other teams were organizing for the office or the Bureau. Id.
Complainant’s supervisor stated in his affidavit that he had had
discussions with Complainant concerning performance expectations and
that he had documentation that indicated such discussions were held by
her previous supervisors. Id. He stated also that the assessment
of Complainant’s managerial/supervisory performance was not an AEF
procedure which required a 360 feedback process or that required a joint
selection of persons to be contacted and, therefore, the established
procedures referred to by Complainant were not applicable. He stated
further that he did pursue the 360 feedback process due to the “brief
time” that he had supervised Complainant and his desire to get a
more complete picture of Complainant’s performance as a manager and
supervisor. Complainant’s supervisor stated that he solicited feedback
on the Complainant's managerial and supervisory skills and capacity from
the employees whom Complainant supervised; other team leaders within
the office who had worked closely with the Complainant over the same
period; members of EGAT’s extended communications team with whom the
Complainant worked; and two other individuals who had also supervised
the Complainant during her probationary period (S1 and S2). Id.
Also in his affidavit, Complainant’s supervisor stated that “most”
of the people from whom feedback was solicited declined to provide any
comments or indicated that they were not in a position to comment on
Complainant's managerial or supervisory skills. He also stated that the
“substantive” responses received were contained in the documentation
provided to HR. Id. Complainant’s supervisor also stated that when
the feedback was received and verified with Complainant's previous
supervisors, he worked with the previous supervisors to verify that
Complainant had been provided feedback on her managerial/supervisory
skills and had been provided training to help remedy identified
deficiencies. He stated further that such feedback and training had been
provided. He stated that during his exchanges with prior supervisors, S1
indicated that she had also arranged for Complainant to have a managerial
mentor from a Bureau contractor to assist Complainant. Id.
Complainant’s supervisor also stated in his affidavit that the
conclusions presented in his Memorandum to HR concerning Complainant's
managerial/supervisory skills and his recommendation that she be
reassigned from her supervisory position as CKM Team Leader represented a
consensus view of the three persons who had supervised Complainant during
her probationary period. Id.; Ex. F7. He stated that after he discussed
the matter with his first and second level supervisors and asked them
whether they had observed managerial or supervisory skills demonstrated
by Complainant that would “mitigate against” his recommendation,
his supervisors stated that they had not seen any such evidence. Ex. F5.
Regarding Complainant’s allegation that he failed to provide her with
an evaluation of her supervisory/managerial performance on July 19,
2005, Complainant’s supervisor stated that among the papers that
he had found after arriving on the job was a Memorandum from HR which
indicated that Complainant’s supervisory managerial performance was
due on November 9, 2005, and that a Memorandum recommending retention or
reassignment of Complainant was due on December 9, 2005. Id. He stated
that the documentation did not direct him to provide this evaluation
to Complainant. Complainant’s supervisor also stated that on August
15, 2005, he received a revised version of the instructions indicating
the evaluation of Complainant’s supervisory/managerial performance was
due on July 19, 2005, and that the Memorandum recommending retention or
reassignment of Complainant was due August 19, 2005. Id. He stated
that the documentation did not direct him to provide the evaluation
to Complainant.
Complainant’s supervisor stated that he did not terminate Complainant
and only made a recommendation regarding Complainant's suitability
for continuing in a managerial/supervisory position. He stated
that the decision to terminate Complainant was made by HR. Id.
Complainant’s supervisor further stated that during the preparation
of his recommendation, he discussed with an HR Specialist (HRS-1) how
a reassignment would be identified and executed.
The record contains an unsigned and undated Memorandum from
Complainant’s supervisor to “M/HR/LERB.”5 F3a at 3-18. In it,
Complainant’s supervisor stated that due to the short time that
he supervised Complainant, he requested input from her two previous
supervisors, S1 and S2, and “general” 360 feedback concerning
Complainant’s overall performance. He further stated that based on
that information and his observation, the consensus view of those who had
supervised Complainant was that her supervisory and managerial approaches
did not contribute to the creation of a cohesive, well-functioning team.
In the Memorandum, Complainant’s supervisor pointed to comments made
by E1 and E2. Complainant’s supervisor also stated that issues and
questions regarding Complainant’s supervisory/managerial skills were
raised by S1, S2, and him. He referenced a retreat held to provide
feedback on supervisory issues, an “extended discussion” that S1
had with Complainant following the transfer of E2, and the arrangement
of S1 for a leadership counselor for Complainant to help Complainant
work on her interpersonal, management, supervisory and related skills.
Complainant’s supervisor stated that work with the leadership counselor
continued through June or July of 2005.6 Complainant’s supervisor
stated also that in another attempt to provide assistance, the EGAT
sent Complainant to the Federal Executive Institute’s (FEI) senior
leadership course. Complainant’s supervisor noted that Complainant’s
previous supervisors had made repeated efforts to advise her of observed
difficulties in her management and supervisory approaches and provided
assistance to her to facilitate change. He stated that based upon the
continuation of the same behavior, approaches, and similar problems, it
was evident that Complainant was not adapting and adopting the required
approach to teamwork and supervision necessary in the Agency. Id.
The record contains the affidavit of S2, Supervisory Program Analyst
for the Program Implementation team in EGAT/PAICO. Ex. F12. S2’s
immediate supervisor was also Complainant’s supervisor at the time of
the complaint. S2 stated that she had been the Acting Office Director
of EGAT/PAICO prior to her supervisor’s arrival. She stated that she
had supervised Complainant for a “limited amount” of time.” Id.
S2 further stated in her affidavit that she had submitted a statement for
use in the 360 evaluation process and that her statement was submitted
in a complete package submitted to HR.
In an unsigned statement, dated August 5, 2005, and which appears
to have been submitted for the 360 evaluation process, S2 stated
that she held her first meeting with Complainant on April 28, 2005,
when S2 was recently named Acting Director. Ex. F3a at 10; Ex. F7
at 16-18. S2 stated further that she discussed the work agenda for
Complainant’s office and general personnel issues with Complainant. Id.
She stated also that one personnel issue was whether or not the new
PAICO database designer was to be assigned to Complainant’s team.
S2 stated that three meetings were set up to go over work and progress
with Complainant but two were not held because Complainant arrived after
the meeting was scheduled or indicated that she had another appointment.
S2 further stated that when she did meet with Complainant she discussed
her annoyance with Complainant for not having met when she was scheduled
to do so. She stated that the meeting was a follow-up to a briefing
held the previous day and the two discussed little else other than S2
was not kept informed as to work involving CKM. Id.
In her 360 evaluation process statement, S2 stated that her next
interaction with CKM occurred while Complainant was in training and a CKM
staff member (Employee D) informed her that she was resigning. Ex. F3a
at 10-11. She stated that although Employee D at first told her that
she was resigning because she was able to find a new position at a higher
salary with a more diverse range of opportunities for graphic design, she
also shared with S2 that an audiovisual experience requirement was added
to a vacancy announcement for a position that was Employee D’s after
Complainant became dissatisfied that Employee A could not properly set
up audiovisual equipment for a presentation. Id. S2 stated that during
the second day of training when Complainant became aware of Employee
D’s resignation, she asked that E1 prepare an inventory of Employee
D’s supplies. S2 stated that the electronic mail that E1 received
from Complainant was forwarded to her by E1 and based on the tone of the
electronic mail, she advised Complainant to concentrate on her training.
Ex. F3a at 11. S2 stated that in a meeting with Complainant where the
request for the inventory was discussed, Complainant admitted that she
was very angry at being caught unaware of Employee D’s resignation
and that Employee D had denied that she was looking for a job. Id.
S2 also stated that she and Complainant spoke on other issues and she
advised Complainant that if she spoke to her team members in the manner
in which she had spoken to S2, she would be surprised if Complainant’s
team members could talk to Complainant “about anything that may not be
pleasant.” Id. S2 stated that Complainant “gave presentations and
not conversations” and that Complainant stated that she had received
very similar feedback at FEI. Id.
S2 also stated that after becoming the Acting Office Director, she was
frustrated by the lack of information sharing or the lack of contact to
discuss work issues. Id. She also stated that she was the recipient of
frustration voiced by Complainant’s staff and had some “extended”
communication with team members. She stated that when trying to share
feedback with Complainant, Complainant’s impression was that her team
did not like her and that her team’s reactions were limited to their
dislike of her. She also stated that she felt that Complainant did
not accept her comments even though she advised Complainant that given
S2’s temporary role, S2 had nothing to lose by laying it all out on
the table to Complainant. Id.
The record contains an undated Memorandum from HR to S2. Ex. B1 at 20.
The Memorandum was a “Supervisory/Managerial Probationary Period
Advisory” informing S2 that Complainant was serving a probationary
period for supervisors and managers and that as a supervisor, S2
would ultimately decide if Complainant was fully successful in her
performance. The Memorandum also informed S2 that she was to advise
Complainant of the duties, responsibilities, and requirements of the
position and the manner in which Complainant was to perform them.
The Memorandum further advised S2 that Complainant was to be informed
that she would be appraised of her performance by the sixth month but not
later than the seventh month of her employment. Id. S2 was also required
to observe Complainant’s performance to determine whether problems
were developing that would raise a question regarding the retention
of the employee in the supervisory or managerial position beyond the
probationary period. S2 was also informed to “[b]e certain” to have
periodic discussions with Complainant about how she was doing in relation
to what was expected and to provide her with assistance when needed.
The record also contains another undated Memorandum from HR to S2
regarding Complainant. Ex. B1 at 22. The Memorandum noted that as a
“final step” in the evaluation of Complainant’s performance as a
manager, S2 was to complete the certification contained in the Memorandum
and return it to HR by August 19, 2005. The certification which was
signed by Complainant’s supervisor on August 18, 2005, indicates that
Complainant was serving the prescribed probationary period and that based
on his observation of Complainant, he would recommend a retention in a
reassignment from the position. Complainant’s supervisor did not check
the box indicating that Complainant had “satisfactorily completed”
the prescribed probationary period but checked off the second option
indicating that Complainant was serving the prescribed probation period.
Complainant’s supervisor also did not check the box indicating that
he was recommending retention in the position but instead checked the
box recommending reassignment. ROI Ex. F3a at 6.
The record contains the affidavit of E1. Ex. F11. In his affidavit,
E1 stated that his title was that of Contractor and he was the webmaster
for the Bureau. He identified Complainant as his supervisor. E1 stated
that he had a meeting which “revolved around” his previous action
to leave his EGAT webmaster position and go to work for a different
office with the Bureau. He also stated that Complainant called the
meeting because Complainant had gone to his second level supervisor and
complained that she wanted to have a meeting with the three of them.
E1 stated that Complainant stated that he should leave the meeting but
Complainant’s supervisor stated that E1 should stay. He said that later
on, there was agreement that he should leave the meeting. He stated also
that the meeting became rather heated and that he recalled distinctly that
Complainant was the first to raise her voice in anger and her supervisor
asked her if that was the way she treated all her subordinates and if so,
he could understand their unhappiness with Complainant’s performance.
E1 also stated that he had brought his concerns to Complainant before
a meeting on July 21, 2005. He also stated that Complainant had a
difficult time managing a team on a collegial level. E1 stated that
every direction from Complainant was a direct order and there was very
little give and take. He stated also that she cancelled staff meetings
without notice and when he told her to give notice of a cancellation,
Complainant took umbrage and that is when they had their meeting about
Complainant’s management style.
An August 15, 2005 statement is contained in the record. F3a at 16, 18.
The statement does not indicate thereon its author and purports to
have been prepared by E2.7 The statement notes that Complainant had an
overall inability to communicate and an inability to develop appropriate
organizational goals and that these inabilities hampered the team’s
operations. Id. E2 also stated that Complainant had an inability to set
appropriate priorities which hurt the team’s effectiveness. E2 provided
two examples of Complainant’s lack of understanding of organizational
goals and two examples of Complainant’s inability to set priorities.
The statement indicates that E2 did not have a meeting with Complainant,
her then supervisor, about her role and responsibilities until December
13, 2004. E2 stated that her supervisor and she came to agreement
on other work objectives soon after the December 13, 2004 meeting but
that E2 was unable to complete the work objectives by the end of the
calendar year. Id. E2 stated that this factor reflected badly on
her 2004 annual evaluation which she stated was vaguely written and
did not incorporate the high performance rating she had received for
the first three quarters of the year in her old position. She stated
that at the time she did not understand the rating system sufficiently.
E2 indicated that she had started as a writer/editor on October 4, 2004.
E2 stated that the December 13, 2004 meeting resulted in a change in her
work, noting that she had been writing daily stories for the intranet
site and she had argued that she felt this was not the best use of her
time given other communications priorities.
E2 noted that several times she was asked about reports from others
that she as the writer/editor would have reviewed but that she had
to admit she knew nothing about. She stated that the logic of what
she was asked to review and what bypassed her was not clear to her and
this did not do much for how she was perceived within the Bureau. Id.
E2 also stated that the situation did improve when she pointed out that
she felt that Complainant disapproved of any communication that she had
with other communications employees outside of her Bureau.
The record also contains an August 16, 2005 electronic mail message reply
from Employee A (who the electronic mail indicates worked in EGAT/ESP)
to an August 15, 2005 electronic mail message from Complainant’s
supervisor concerning 360 feedback on Complainant.8 Ex. F7 at 24.
She stated that several months previous she had been asked by the TRG
Consultant to provide feedback on Complainant’s leadership style and
how it was working or not working with the CKM team. Employee A stated
that the role of the CKM’s team was unclear. She stated further that
Complainant had poor written communication skills (“poor grammar and
typos”), did not understand the Agency and EGAT, needed to implement
more formal structures, such as information sharing, exhibited poor
follow-up, and had not clearly articulated the role of the CKM team.
The record contains an August 16, 2005 electronic mail reply message
to Complainant’s supervisor from Employee E, concerning 360 feedback
for Complainant.9 Ex. F4 at 3. In the electronic reply, Employee
E stated that Complainant had the “unenviable task” of trying to
create a communication culture within EGAT where none had existed before.
She stated also that task was a work objective that she and Complainant
shared and she understood the constraints and difficulties the objective
entailed. Employee E further stated that “to her credit,” Complainant
had begun to identify and recruit an able and congenial team to help
her carry out her goals and objectives. Id. She also stated that
from her observation, Complainant provided Complainant’s team with
the support it needed to be effective and the oversight required to be
responsive to the Bureau and to the staff at large. Employee E stated
that Complainant was professional in her demeanor and in the way she
approached her duties and responsibilities, was willing to collaborate,
had never shied away from opportunities to lead those responsible for
communications and outreach, and sought ways to improve the Agency’s
capacity to be better and more effective communicators. Id.
In an August 15, 2005 electronic mail to S1, Complainant’s supervisor
requested that she send him information about Complainant’s capabilities
as a supervisor and manager of people. Ex. F7 at 15. He stated that he
needed the information right away because HR had “messed up” because
the dates HR had provided in their memo on Complainant’s supervisory
status were wrong. Id.
In a Wednesday, August 17, 2005 electronic mail to Complainant’s
supervisor, S1 stated that her files were “pretty thin” but that
in March 2005, CKM had held a retreat to develop an action plan for
the team and to provide team members an opportunity to provide candid
feed back on the management and supervision issues that team members
perceived on the part of Complainant. Id. at 14. S1 also noted that
the “front office” had agreed to move E2 from CKM to PAMS because
E2 was considering leaving CKM and EGAT because of Complainant’s
“management style and supervision” and “they” did not want to
lose E2. She stated that at the time E2 changed responsibilities, she
had a long conversation with Complainant; that the two talked about the
range of Complainant’s supervisory duties; and she recommended that
E2 be moved.
In an August 17, 2005 electronic mail, S1 stated that she had perceived
a problem with Complainant’s interpersonal and management skills
and she recommended that Complainant obtain leadership counseling from
TRG. Ex. F 7 at 14. She also stated that Complainant had several sessions
in April and May 2005, with TRG working on interpersonal, supervisory and
management skills. She further stated that after the CKM retreat, TRG
conducted an assessment of selected EGAT staff including all of CKM staff
on their issues with Complainant’s management and supervisory style
and used these in discussions with Complainant during April and May 2005.
A Memorandum, dated November 19, 2004, to Complainant from an HR
Specialist indicating that there was a five-day course for Agency
Washington supervisors entitled “Supervisor's Role in Personnel
Management (SRPM)." Ex. F7. The record also contains a December 2,
2004 electronic mail to the HR Specialist informing him that two weeks
prior Complainant had completed a five-day mandatory supervision course
offered by FEI. Ex. G13. The HR Specialist agreed in a reply electronic
mail that the seminar taken by Complainant would suffice for the SRPM
course. Id.
Complainant’s position description, GS-15 Supervisory Communications
Specialist (SCS), indicates that she was to perform the administrative
and human resource management functions for the staff; supervise, plan,
and schedule on-going workload assignments; set and adjust work to be
accomplished by subordinates; adjust programs and project priorities,
and prepare schedules for work completion. Ex. G2. Included among the
duties was assigning work to subordinate staff based on priorities with
consideration of the difficulty and requirements of assignments and the
capabilities of employees. The position description also indicates
that the SCS was to serve as senior manager for all technical public
information; formulate policies, programs and procedures governing
information dissemination; and supervise and plan all phases of public
communication, including media events, speeches and formal publications.
The SCS was also required to write and edit complex public information,
contribute to publications and report and select and organize materials
written by others for publication, report, or analysis.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that her complaint was never the Agency’s
failure to adhere to AEF procedures. She asserts instead that her
complaint was alleging that her supervisor’s claim that he had used the
360-evaluation system to determine Complainant’s management ability
was a lie. She asserts further that her supervisor never intended to
obtain a balanced evaluation of her performance and that he only began
to collect information about her once she had filed her discrimination
complaint. Complainant also denies that she was assigned a professional
development mentor, noting that it was she who had requested the career
coach after finding out that grade level GS-15 and above were eligible
for coaches. Complainant denied that the purpose of the retreat was to
discuss Complainant’s management style.
Complainant asserts that her supervisor failed to ask all staff
members whom she supervised about her performance, focusing only on the
statements of two of her subordinates who did not want her to manage them.
Complainant asserts further that the two statements of two other employees
who had worked with her and who had attested to the high quality of
her management, were not included in the package which her supervisor
submitted to HR.
Complainant asserts that if she were autocratic, there was no evidence to
substantiate management’s claim that she was counseled. Complainant
further asserts that E1 characterized her as autocratic because she
required him to report to her and to update her about his website work.
She also asserts that her supervisor supported E1 by telling him that
he did not need to account for his job performance to Complainant nor
justify his billing to Complainant. She asserts that E1 and E2 who she
had counseled for insubordination were the only two staff members used
in the HR case.
She asserts that no one could explain how she had worked in the position
for a year and 11 months without a single piece of documentation
referencing her alleged autocratic management style. She denied that
S2 had ever met with her to discuss her experience at FEI. Complainant
also asserts that she never made the comments S2 made in her affidavit.
Complainant asserts that her attendance at the FEI was not for correction
of her performance and that attendance at the FEI was reserved for the
best and the brightest.
In its response, the Agency asserts that regarding claim 1, Complainant
failed to establish a prima facie case that the Agency failed to adhere to
AEF procedures. The Agency asserts that Complainant failed to show that
she was subjected to an adverse employment action or that she was treated
differently from those not in her protected group. The Agency further
asserts that the AEF procedure did not apply to her as she was terminated
during her probationary period and prior to the end of the rating cycle.
The Agency further asserts that even if Complainant had established a
prima facie case of race discrimination, it had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Agency
asserts that because S1 did not prepare an AEF for Complainant, he was not
required to employ the 360 feedback process because it was not an element
used in the preparation of an evaluation of the Supervisory/Managerial
Performance and Recommendation for Retention in or Reassignment from
the position that he submitted to HR.
Regarding her claim of a hostile work environment, the Agency asserts that
Complainant identified a single, isolated date in which she participated
in a discussion with management and a subordinate and that while,
Complainant may have been offended by her supervisor's reference to her
military background and his tone of voice, she failed to show that his
demeanor or comments were related to or based on her race.
Regarding Complainant’s termination, the Agency asserts that
considerable evidence was provided in support of her supervisor’s
assertion that he provided the recommendation based on the Complainant’s
failure to demonstrate the supervisory skills required to perform in her
position. The Agency also asserts that although Complainant references
positive and complimentary statements during the formal investigation and
on appeal to discredit the recommendation submitted, the statements do not
negate the facts that as a result of issues surrounding Complainant’s
management style, it was necessary to hold a retreat to address staff
concerns, that Complainant was placed in the FEI leadership course, and
that Complainant sought and received an executive coach to strengthen
her management skills.
The Agency also contends that although Complainant had received an
excellent rating, the rating covered only 114 days, and that shortly
after the evaluation, corrective measures began to be implemented to
address concerns with Complainant’s management style.
Regarding reprisal, the Agency states that Complainant’s supervisor
began obtaining feedback on Complainant because her supervisor sought to
respond to HR’s request to make a recommendation for Complainant’s
retention or reassignment.
ANALYSIS AND FINDINGS
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or
prior EEO activity is unlawful, if it is sufficiently patterned or
pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Sys., Inc. at 3, 9 (March 8, 1994). In determining whether a working
environment is hostile, factors considered are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with
an employee's work performance. See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's
purview.” Harris, 510 U.S. at 22 (1993).
The conduct in question is evaluated from the standpoint of a reasonable
person, taking into account the particular context in which it occurred.
Unless the conduct is very severe, a single incident or group of isolated
incidents will not be regarded as discriminatory harassment. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982. Whether the
harassment is sufficiently severe to trigger a violation must be
determined by looking at all 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, supra. The Supreme Court has emphasized the necessity of
separating “significant from trivial harms.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
The Commission's Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999) identifies two types of harassment: (1) harassment that results in
a tangible employment action; and (2) harassment that creates a hostile
work environment.
A complainant can establish a prima facie case of reprisal 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, 411 U.S. at 802). Specifically,
in reprisal, and in accordance with the burdens set forth in McDonnell
Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request
No. 05960473 (Nov. 20, 1997), a complainant may establish a prima
facie case of reprisal by showing that: (1) complainant engaged in
protected activity; (2) the Agency was aware of the protected activity;
(3) subsequently, complainant 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). A nexus may be shown by evidence that
the adverse treatment followed the protected activity within such a
period of time and in such manner that a retaliatory motive may be
inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231
(Jan. 25, 2005). See Clark County Sch. Dist. v. Breeden, 532 U.S. 268
(2001) (finding that a three-month period was not proximate enough to
establish a causal nexus).
The Commission has stated that adverse actions need not qualify as
“ultimate employment actions” or materially affect the terms and
conditions of employment to constitute retaliation. EEOC Compliance
Manual. Section 8: Retaliation, No. 915.003, at 8-13 (May 20, 1998); see
Burlington, 548 U.S. at 67. (finding that the anti-retaliation provision
protects individuals from a retaliatory action that a reasonable person
would have found “materially adverse,” which in the retaliation
context means that the action might have deterred a reasonable person
from opposing discrimination or participating in the EEO process). The
statutory retaliation clauses prohibit any adverse treatment that is
based upon a retaliatory motive and is reasonably likely to deter the
charging party or others from engaging in protected activity. Lindsey
v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999).
The Commission has held that the actions of a supervisor may constitute
per se reprisal where the supervisor intimidates an employee and
interferes with the employee's EEO activity in any manner. See Binseel
v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki
v. Dep’t of the Army, EEOC Request No. 05920778 (June 4, 1993).
To prevail in a disparate treatment claim, Complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that Complainant
was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency’s explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (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 Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Because 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).
As an initial matter, we find that claim 1 standing alone does not state a
claim. 29 C.F.R. §1614.107(a)(1). There is no harm for which a remedy can
be granted. Even were we to reframe the claim as Complainant asserts,
i.e., her supervisor’s claim that he had used the 360 evaluation
system to determine Complainant’s management ability was a lie, the
allegation does not state a claim. The claim as urged by Complainant
is in support of an underlying claim and is not an independent cause
of action. Claim 1 and whether Complainant’s supervisor lied will
nonetheless be considered as background information to the remainder of
the complaint and as part of the harassment claim.
Complainant has alleged that her termination was based on race and
reprisal. Complainant established a prima facie case of reprisal
because she engaged in an EEO activity; her supervisor was aware that
she had engaged in such activity; and the termination was approximately
within one month of Complainant’s initiation of EEO contact. The EEO
Counselor’s Report (CR) shows that Complainant initiated EEO activity
on July 28, 2005, when she sought counseling with an EEO Counselor. ROI,
Ex. B1. We do not find that Complainant has established a prima facie
case based on race. She has not shown that others not in her protected
class were treated more favorably than she was regarding termination.
Even if we were to find Complainant established a prima facie case
of race (and retaliation) for the termination claim, we find that the
Agency articulated a legitimate, nondiscriminatory reason for its action
in terminating Complainant, i.e., Complainant failed to demonstrate
the required skills and abilities that would warrant her continued
employment. Specifically, the Agency reasoned that Complainant’s
“autocratic supervisory style” and “micromanagement” of her
subordinates had inhibited the cohesiveness and damaged the productivity
of Complainant’s work group. Complainant has not demonstrated that
the Agency’s reasons were pretext to mask prohibited discrimination.
In fact, the record indicates that Complainant’s supervisor recommended
that she be reassigned. He did not recommend termination. Even if
the Agency lied about its actions, Complainant must link the lie or its
creation to prohibited discrimination and she has not done so. Further,
Complainant has not shown that the Agency’s action in terminating her
was based on discriminatory animus.
Regarding the claim of a hostile work environment, we also find that
Complainant has not established that the alleged actions were severe or
pervasive enough to create a hostile workplace. Even were we to assume
the workplace was hostile towards Complainant, Complainant must show that
the hostile environment was linked to unlawful discrimination. At all
times, the ultimate burden of persuasion remains with a complainant
to demonstrate by a preponderance of the evidence that the agency’s
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
CONCLUSION
The Agency’s decision is AFFIRMED.
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
December 21, 2011
__________________
Date
1 The functional title for the position was Communications
Director. Ex. G6 at 1.
2 “AA” appears to refer to the Office of the Assistant Administrator.
3 It is not clear to whom the Program Analyst was referring.
4 It is not clear to whom the Program Analyst was referring.
5 M/HR/LERB is defined as Management/Office of HR/Labor Employee
Relations. Ex. G16 at 3.
6 Though the undated Memorandum references June or July of the
“current” year, it can be inferred from the record that the reference
was to 2005.
7 In her affidavit, E2 stated that she could not locate her copy of her
360 feedback statement, but that she had no reason to believe that what
she had submitted was altered. Ex. F 8.
8 The record does not identify the position held by Employee A although
the Agency’s decision indicates in a footnote that Employee A was a
member of the “extended communications team.”
9 Employee E was identified as an Educational Communications Specialist
who, Complainant stated, had worked closely with her team. Ex. F 4.
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01-2008-2820
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
20
0120082820