01A12678
08-08-2002
Margaret E. Smith, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Margaret E. Smith v. Department of the Army
01A12678
August 8, 2002
.
Margaret E. Smith,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A12678
Agency Nos. ANBKFO0002A0070,
ANBKFO0102B0090
Hearing No. 130-AO-8250X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaints of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Secretary, GS-318-05, in the Behavioral Medicine Division
at the U.S. Army Medical Department Activity (MEDDAC), Community Mental
Health, at Redstone Arsenal, Alabama. Complainant sought EEO counseling
and subsequently filed the first formal complaint on May 25, 1999,
alleging that because of her race (Black)<1> and sex (female) she was
not selected for promotion to the position of Secretary, GS-0318-06,
in February 1999.<2> In this complaint, complainant also alleged that
the Supervisory Clinical Psychologist (P1) threatened her on February
18, 1999. However, the agency dismissed this allegation in accordance
with 29 C.F.R. � 1614.107 (b). Complainant now appeals the dismissal
of this allegation.
Complainant filed a second complaint on September 13, 1999, alleging
that because of her race and sex, and as reprisal for prior EEO activity,
she was subjected to a hostile work environment, when, for example:
On April 9, 1999, she learned that Army officials failed to follow,
and/or make others follow, Federal regulations;
From March 15-31, 1999, she was falsely accused of not following
procedures;
On January 5, 1998, she was asked to take on duties as a Medical Clerk
that were not a part of her job description;
P1 maintained unauthorized files on her; and,
Complainant was singled out for unfair treatment when other employees
not in her protected group were treated better.
The two complaints were subsequently consolidated. At the conclusion
of the investigation, complainant was informed of her right to request
a hearing before an EEOC Administrative Judge (AJ) or alternatively, to
receive a final decision by the agency. Complainant initially requested
a hearing, however she failed to comply with an Acknowledgment Order
issued by the AJ, resulting in the AJ returning her complaints to the
agency for issuance of a final decision.
In its FAD, the agency concluded, with regard to issue one, that
complainant failed to establish a prima facie case of discrimination
based on sex or race because she did not show that she was treated less
favorably than individuals outside her protected classes. Additionally,
the FAD found that complainant failed to establish a prima facie case of
discrimination based on reprisal because the incidents she identified as
harassment all occurred prior to her initial contact with the EEO office.
As to issue two, the FAD found that complainant did not establish a
prima facie case of sex discrimination because the selectee was female.
The FAD found, however, that complainant
did establish a prima facie case of race discrimination because the
selectee was of a different race.
The FAD proceeded to assume, arguendo, that complainant established a
prima facie case of discrimination on all of the alleged bases, and
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the FAD found that the previous
White, female secretary had also performed medical clerk duties. As to
the e-mails and memoranda which complainant describes as harassing, they
pertained to tasks that were assigned to complainant, but were either
not accomplished, or not accomplished to standard. As to complainant's
viewing the moving of her desk as harassment, the FAD refers to P1's
explanation that the desk was moved from back to front because they were
losing patients, and this helped to provide patient coverage. As to the
threatening comment that S1 allegedly made, the FAD notes that S1 denies
making such a comment. The FAD found that complainant failed to establish
that she was harassed because of her membership in protected classes.
With regard to issue two, the FAD found that the selectee's experience
reflected a broader range of duties, such as budgeting, technical computer
skills, and up-to-date knowledge of TRICARE standards than complainant.
The FAD acknowledged that complainant was qualified for the position,
but found that the selecting officials viewed her strengths to be
in different areas than selectee's. The FAD noted that the agency
has discretion to choose among candidates with different, but equally
desirable qualifications, as long as the decision is not premised on an
unlawful factor, such as race. The FAD found that complainant failed
to show that the agency's reasons for her nonselection were pretext
for discrimination.
On appeal, complainant makes the following principal contentions:
The issuance of sanctions against complainant was improper and/or severe,
and complainant was denied a full and fair hearing;
The agency's legal analysis was flawed, and the agency's stated reasons
for not selecting complainant, are disingenuous;
The harassment did not stop, and in fact, increased, when complainant
filed her harassment complaint.
The agency requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD 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). With respect to complainant's assertion on appeal that she
has been subjected to ongoing harassment since she filed her instant
complaint, the Commission's regulations allow a complainant to amend
a complaint at any time prior to the conclusion of the investigation to
include issues or claims like or related to those raised in the complaint.
Additionally, after requesting a hearing, complainant may file a motion
with the EEOC Administrative Judge to amend a complaint to include
issues or claims like or related to those raised in the complaint.
29 C.F.R. � 1614.106(d). However, the regulations do not permit a
complainant to raise a new claim on appeal. Therefore, even assuming,
arguendo, that complainant's allegations are related to her instant
claim, it would be inappropriate for the Commission to address the
allegation on appeal. Singleton v. Social Security Administration, EEOC
Appeal No. 01984784 (April 13, 2001). As the Commission can not address
an issue raised for the first time on appeal, complainant is advised
that if she wishes to pursue, through the EEO process, these additional
allegations she must contact an EEO counselor within 15 days after she
receives this decision. The Commission advises the agency if complainant
seeks EEO counseling regarding this new claim within the above 15 day
period, the date complainant filed the appeal statement in which she
raised this allegation shall be deemed the date of initial EEO contact,
unless she previously contacted a counselor regarding this matter, in
which case the earlier date shall serve as the EEO counselor contact
date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC Request
No. 05970201 (January 16, 1998); Williams v. Department of the Navy,
EEOC Request No. 05A10183 (June 21, 2001).
We now address complainant's contention that the AJ erred in remanding
the case to the agency. The AJ found that complainant failed to file
pre-hearing submission as ordered. The AJ, pursuant to 29 C.F.R. �
1614.109(d)(3)(v) (permitting administrative judges to " [t]ake such
other actions as appropriate" when a complainant fails to comply with
certain requests) remanded the matter to the agency for the issuance of
a final decision. We find that complainant failed to comply with the
AJ's Order and that the AJ acted within his discretion when he canceled
the hearing and remanded the matter to the agency. See Chuney v. United
States Postal Service, EEOC Appeal No. 01986286 (November 17, 1999).
We next address the dismissed allegation that P1 told complainant �You
can't run; you can't hide.� No other evidence of record (including
the Counselor's Report) indicates that complainant ever brought this
allegation to the attention of the EEO counselor. P1 also denies making
this statement. See ROI, Transcript of Fact-finding Conference, at 88.
However, we note that the FAD does address this issue. Assuming arguendo,
that complainant did raise this issue before the EEO counselor, and
assuming, arguendo, that P1 did make the alleged comment, there is
insufficient evidence to indicate that the comment was motivated by a
discriminatory animus on the part of P1, toward complainant because of
her membership in protected classes.
Harassment
It is well-settled that harassment based on an individual's race and
sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a claim of harassment under those bases,
the complainant must show that: (1) she belongs to the statutorily
protected classes; (2) she was subjected to unwelcome conduct related to
her membership in those classes; (3) the harassment complained of was
based on race and sex; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is
a basis for imputing liability to the employer. See Henson v. City of
Dundee , 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). After a careful
review of all of the alleged harassing behavior, we find that complainant
has presented insufficient evidence to indicate that any of management's
actions were motivated by an animus toward her because of her membership
in protected classes. In so finding, we note that although complainant
alleges that the White secretary (S1) who formerly held complainant's
was not required to perform medical clerk duties, S1 submitted a signed
statement directly contradicting that contention. See ROI, Exhibit F-8,
at 270.
Nonselection
We concur that, as to this issue, complainant established a prima facie
case of discrimination based on race, but not based on sex, because
the selectee was a Hispanic female. Therefore, we turn to the agency
to articulate a legitimate, nondiscriminatory reason for its action.
The Chief of Clinical Support Division (C1) explained he and his boss
were the selecting officials. See ROI, Transcript of Fact-finding
Conference. C1 stated that they felt that the selectee best suited the
needs of the position. See id. at 226. C1 additionally stated that
the selectee's experience reflected a broader range of duties, such as
budgeting, technical computer skills, and up-to-date knowledge of TRICARE
standards. See id., at 87. C1 further noted that the selectee received
a higher rating on their matrix than complainant. See id., at 193.
In an attempt to establish pretext, complainant argues that she is more
qualified for this secretarial position than the selectee. The agency
has broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the Treasury,
EEOC Request No. 05940906 (January 16, 1997). Complainant may be able
to establish pretext with a showing that her qualifications were plainly
superior to those of the selectee. Wasser v. Department of Labor, EEOC
Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). We find that complainant has not shown that
her qualifications are plainly superior than those of the selectee, nor
has she persuaded the Commission, by a preponderance of the evidence,
that the agency's reasons for not selecting her are pretextual.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 8, 2002
__________________
Date
1 The record indicates that complainant alleged both race (Black) and
color (black) as bases of alleged discrimination, however she uses the
terms interchangeably. See Record of Investigation (ROI), Transcript of
Fact-finding Conference, at 12-14, 24.
2 The record reveals that in her formal complaint, complainant also
alleged reprisal for prior EEO activity as a basis of discrimination.
However, she subsequently elected to withdraw this basis as to the
nonselection issue only. See id. at 23.