Wendolyn Young v. Department of Agriculture 01A40724 March 28, 2005 . Wendolyn Young, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency. Appeal No. 01A40724 Agency No. 020246 Hearing No. 130-2003-8091X DECISION Complainant, a Public Affairs Specialist, GS-1035-11, in the agency's Forest Service in Jackson, Mississippi, filed an EEO complaint in which she claimed that the agency discriminated against her on the bases of her race (Black), sex (female), and in reprisal for her previous EEO activity under Title VII when she was not selected for the position of Public Affairs Officer, GS-10-35-12/13 under Vacancy Announcement R8091701G. Complainant also claimed that she was discriminated against in reprisal for her previous EEO activity under Title VII when: 1. From November 2001 on a continuing basis, her supervisor scrutinized her by asking her questions about compensatory hours that she had accrued. 2. From November 2001 on a continuing basis, her supervisor has criticized her regarding award recommendations for her staff and the lack of performance appraisals for her staff. 3. She was advised not to file a complaint by the Forest Supervisor and the Southern Region Director of Public Affairs. 4. She felt humiliated during a conference call. 5. Her assignment as Acting Public Affairs Officer was terminated. 6. She was denied credit for work that she performed while she was on leave. 7. She was assigned to work under the new Public Affairs Officer. 8. From August 7-21, 2002, her supervisor authorized and instructed personnel to remove equipment and files from her work area without her knowledge or permission. 9. On August 21, 2002, her supervisor accused her of misusing her authority to gain compensatory time. 10. On August 21, 2001, her supervisor tried to prohibit her from using official time to meet with her attorney regarding her EEO complaint. 11. On August 28, 2002, in a meeting with her second-line supervisor, management instructed her in writing to rescind 26 hours of compensatory time. 12. On August 29, 2002, a management official stated that they could have suspended her for gaining compensatory time. 13. On August 30, 2002, her personnel file was missing from the Personnel Office. 14. From January to February 2002, her work assignments were taken from her and she was required to perform lower graded duties. 15. Management has failed to take actions to stop the harassment. The record reveals with regard to the relevant nonselection that complainant was one of three candidates who were referred for consideration to the selecting official, but the eventual selectee was the only candidate who was recommended for selection. The selectee for the position was a White female.<1> Complainant had previously worked in the position at issue in an acting capacity. The EEO complaint was accepted for investigation. Subsequent to the completion of the agency investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). A hearing was held and on September 2, 2003, the AJ issued a decision wherein he found that no discrimination occurred. The AJ found that complainant failed to establish a prima facie case of sex discrimination with regard to her nonselection in light of the fact that the selectee was female. The AJ also found that complainant failed to establish a prima facie case of reprisal with regard to her nonselection because the nonselection occurred approximately five years after complainant's previous EEO activity. With regard to complainant's claim of race discrimination concerning her nonselection, the AJ found that complainant established a prima facie case, and also that the agency set forth a legitimate, nondiscriminatory reason for her nonselection. The AJ noted that the agency stated that the selectee was chosen because she had more prior experience in the position of Public Affairs Officer. The AJ found that complainant did not demonstrate that the agency's articulated reason was a pretext for race discrimination. As for complainant's claim of retaliatory harassment, the AJ found that complainant failed to establish a prima facie case of reprisal because she had not been subjected to any adverse employment action. The agency issued a final order dated October 24, 2003, wherein it fully implemented the AJ's decision. On appeal, complainant contends with regard to her nonselection that the agency's stated reasons for her nonselection, the selectee's greater experience in public affairs supervision and complainant's lack of natural resource experience, are pretext intended to mask discriminatory intent. Complainant argues that natural resource experience was not a job-related criteria and was not listed for response in the evaluation criteria. Complainant nonetheless maintains that she demonstrated knowledge of local, regional and national natural resource issues confronting the agency. Complainant states that she advised or provided leadership in resolving these issues and garnered public involvement in these issues. Complainant further states that she has supervisory experience and has engaged in a full range of supervisory responsibilities. According to complainant, the Forest Supervisor stated to another agency employee that the agency was not ready to have two Blacks leading in Mississippi. Complainant states that the Forest Supervisor has in the past recommended five white males, one Black male, three White females, and one Asian/Pacific Island female for selection to positions of the GS-12 through GS-14 levels. Complainant further states that the Forest Supervisor has not recommended and the Regional Forester has not selected an African-American female for any position during the Forest Supervisor's tenure. According to complainant, no African-American has permanently filled the Public Affairs Officer position in Mississippi. Complainant contends that in Fiscal Year 2000, the Forest Service's Managers Diversity Profile revealed that Black women held only six of 672 Manager positions in the agency. With regard to her claim of reprisal concerning her nonselection, complainant states that the Acting Deputy and the Forest Supervisor discussed her prior EEO complaint in 2000 or 2001. Complainant states that she has repeatedly been used in an acting capacity as a Public Affairs Staff Officer for expansive periods of time, yet she has not been chosen for permanent leadership positions. In response, the agency asserts that the selectee possessed significantly more experience in public affairs than complainant, including a lengthy stint as a Public Affairs Officer. The agency challenges complainant's argument that her college degree was more relevant to the job duties. The agency states that the selectee possessed a graduate degree involving a focus on communications. Additionally, the agency asserts that the selectee possessed greater depth and breadth of experience than complainant as complainant had been based in Mississippi for her entire career with the Forest Service. Further, the agency maintains that the doctrine of remoteness bars a finding of any causal connection between complainant's previous EEO activity and her nonselection. The agency notes that complainant's previous EEO activity occurred approximately five years before the relevant nonselection. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. After a careful review of the record, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. With regard to complainant's nonselection, complainant failed to establish a prima facie case of sex discrimination. Both complainant and the selectee are female. Therefore, they are members of the same protected group. For purposes of analysis, we will assume, arguendo, that complainant has established a prima facie case of race and reprisal discrimination. Next, we shall consider whether the agency articulated a legitimate, nondiscriminatory reason for its action. The Forest Supervisor testified that complainant performed satisfactorily while serving in an acting capacity as Public Affairs Officer. However, the Forest Supervisor also testified that he had different expectations for someone serving in an acting capacity as opposed to someone filling the position on a permanent basis. The Forest Supervisor testified that the selectee was chosen because she possessed experience working with both the Forest Service and other agencies, had an excellent background in natural resources, and had work experience in supervising employees. The Forest Supervisor further testified that the selectee has worked as a Public Affairs Officer for ten years, is technically competent, and possesses good interpersonal skills. The Forest Supervisor noted that complainant has a general lack of experience in dealing with natural resource activities; lacks breadth of experience as all of her experience has been acquired in the National Forest in Mississippi; and has a general lack of experience in supervising employees. We find that the agency has articulated legitimate, nondiscriminatory reasons for its decision not to select complainant for the Public Affairs Officer position. We further find that complainant has failed to establish that the agency's stated reasons were pretext intended to mask discriminatory motivation. The Commission finds that it was not unreasonable for the Forest Supervisor to have different expectations for an individual in an acting capacity as opposed to an individual serving in the position on a permanent basis. Upon review of the record, we find that complainant has not shown that her qualifications for the position at issue were so superior to those of the selectee as to warrant a finding that the agency's stated reasons are pretextual. Further, complainant has not provided corroboration of her claim that the Forest Supervisor stated that the agency was not ready to have two lacks leading in Mississippi. We therefore find that complainant was not discriminated against on the grounds of her race, sex or in reprisal for her previous EEO activity when she was not selected for the Public Affairs Officer position. As for complainant's claim of retaliatory harassment, we note that a single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1129, 1138-1139 (D.C. Cir. 1985). Whether the harassment is sufficiently severe to trigger a violation of Title VII 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 v. Forklift Systems, 510 U.S. 17 (1993). In order to set forth a prima facie case of reprisal, complainant must show that (1) she engaged in a protected activity; (2) the agency was aware of her protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse action. See Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976). We shall assume arguendo that complainant has established a prima facie case of reprisal. With regard to complainant being questioned about compensatory hours that she accrued, the Forest Supervisor stated that complainant was questioned because the agency handbook requires that employees must use compensatory time off by the end of the leave year in which it was earned. According to the Forest Supervisor, complainant accrued compensatory time on the books exceeding two years; therefore, he wanted to remind her of agency policy and obtain her compliance with the policy. As for his criticism of complainant regarding the lack of performance appraisals for her staff, the Forest Supervisor stated that complainant was questioned as to why performance elements were not established or ratings completed for the employees for whom she has supervisory responsibility. The Forest Supervisor noted that all Forest Service employees are required to have performance elements established by supervisors prior to the new fiscal year. With respect to complainant's award recommendations for her staff, the Forest Supervisor stated that several award recommendations made by complainant and other officials were returned for additional staff work and were approved once additional information was provided. The Forest Supervisor denied complainant's claim that she was advised not to file an EEO complaint. As for complainant's claim that she felt humiliated during a conference call when participants were told to refer all public affairs concerns to the Deputy, the Forest Supervisor stated that he informed complainant several days before the conference call that her detail as the Acting Public Affairs Officer would end. As for the termination of complainant's detail as the Acting Public Affairs Officer, the Forest Supervisor stated that complainant served the complete term of the detail, July 29, 2001 - November 18, 2001, as scheduled. The Forest Supervisor stated that he had no knowledge of denying complainant credit for work she had been asked to perform while on leave. As for complainant's assignment to work under the new Public Affairs Officer, the Forest Supervisor explained that complainant was asked to return full-time to the Public Affairs Staff where the workload is considerable as opposed to the reduced workload in complainant's other work unit, the Land Management Planning Team. With respect to the removal of equipment and files from complainant's work area without her knowledge or permission, the Deputy Forest Supervisor stated that while complainant was on a five month detail in Georgia, the acting Public Affairs Officer asked if the printer could be moved from complainant's office to the Public Affairs Officer's office. The Deputy Forest Supervisor stated that he approved the request because it seemed reasonable for the acting Public Affairs Officer to have direct access to a printer. As for accusing complainant of misusing her authority to gain compensatory time, the Forest Supervisor stated that complainant failed to follow written instructions that require an employee to secure permission in advance from her supervisor if she wishes to earn compensatory time. According to the Forest Supervisor, he discussed this matter with complainant as a means of reminding complainant about the use and earning of compensatory time. With regard to prohibiting complainant from using official time to meet with her attorney regarding her EEO complaint, the Forest Supervisor explained that he told complainant that he was unaware of all the intricacies associated with approving official time and that he wanted to speak to the Human Resource Office. The Forest Supervisor stated that he subsequently shared information with complainant concerning the written policy regarding official time allowed for EEO complaints. With regard to instructing complainant in writing to rescind 26 hours of compensatory time, the Forest Supervisor stated that complainant was not following Forest Service policy in the use/earning of compensatory time. According to the Forest Supervisor, complainant earned 26 hours of compensatory time, including 9.5 hours for her travel home, without contacting him or the Deputy Forest Supervisor in advance for approval. The Forest Supervisor stated that he considered those hours unauthorized and that complainant had previously been instructed to accomplish her work assignments within the 80 hour pay period until she eliminated her backlog of compensatory time. As for a management official's alleged comment that complainant could have been suspended for gaining compensatory time, the Deputy Forest Supervisor stated that although he had no knowledge of the statement being made by anyone, it was his understanding that the Acting Public Affairs Officer mentioned to complainant that she could have been suspended for failing to follow instructions concerning the accrual of compensatory time. With respect to complainant's file missing from the Personnel Office, a Personnel Management Specialist stated that she has no knowledge of complainant's file being missing. The Personnel Management Specialist stated that complainant requested copies of her time sheets and all other documentation in her time sheet file and such information was provided to complainant. Both the Forest Supervisor and the Deputy Forest Supervisor stated that they were unaware that work assignments were taken from complainant and she was required to perform lower graded duties from January to February 2002. They also stated that they did not believe complainant had been harassed. We find with regard to the alleged acts of harassment that the agency has either presented legitimate, nondiscriminatory reasons or has denied the occurrence of such actions. In her attempt to establish that the agency's reasons are pretext intended to mask discriminatory intent, complainant claimed with regard to being questioned about compensatory hours that she had accrued that the Forest Supervisor harshly questioned her and accused her of abusing compensatory hours. Complainant stated that her compensatory time had been approved in previous pay periods and the Forest Supervisor on many occasions signed her time and attendance cards and never questioned her about her compensatory time. Complainant stated that the Forest Supervisor harshly accused her of not conducting performance appraisals for her staff. Complainant maintained that she informed the Forest Supervisor that she had conducted annual appraisals and submitted them to the Personnel Office. Complainant claimed that the Forest Supervisor then accused her of not conducting mid-year performance appraisals. Complainant stated that she told the Forest Supervisor that if this was such an important issue, he should have brought it to her attention at the six month point rather than after she filed her EEO complaint. As for her award recommendations, complainant contended that the Forest Supervisor would not accept them and told her to change the amounts of the awards to reflect five percent of the employees' salary. Complainant claimed that she is unaware that anybody else was required to make such adjustments prior to this incident. Complainant maintained that the Forest Supervisor and the Southern Region Director of Public Affairs both advised her not to file an EEO complaint. According to complainant, she told the Forest Supervisor that she would look into the selection process to make sure it was fair. Complainant states that the Forest Supervisor told her he would not do that if he was her. With respect to the conference call and her detail being terminated, complainant argues that she felt humiliated when during a conference call on November 26, 2001, prior to telling her that her detail had ended and that another acting Public Affair Officer would be assuming the position, the Forest Supervisor told the staff and rangers that they were to address all public affairs concerns to the Deputy Forest Supervisor until the new appointee reported. Complainant argued that while she was on sick leave she handled critical issues that were facing the agency, but that she received no award or recognition for going above and beyond the call of duty. With regard to being assigned to work under the new Public Affairs Officer, complainant testified that she was reassigned from Planning to Public Affairs because the Forest Supervisor saw the necessity of having another person help the new acting Public Affairs Officer. Complainant stated that she was denied any assistance during her tenure as acting Public Affairs Officer. With regard to the removal of equipment and files from her work area without her knowledge or permission, complainant claimed that she was the only employee whose equipment has been taken while on leave. As for being accused of misusing her authority to gain compensatory time and being told to rescind 26 hours of compensatory time, complainant maintained that she received approval for the time from her detail supervisor and that it is customary that the detail supervisor approve compensatory time rather than the employee's supervisor with her home unit. Complainant acknowledged that her compensatory time was not rescinded nor was she penalized. As for her supervisor attempting to prohibit her from using official time to meet with her attorney, complainant testified that this happened repeatedly, but she always was able to meet with her attorney. With respect to being told that she could have been suspended for gaining compensatory time, complainant stated that she considered the acting Public Affairs Officer's comment to be very threatening because she did not know what the agency was going to do. Complainant testified that her time and attendance file was missing from the Personnel Office. Complainant stated that the file was located on the Personnel Officer's desk and everybody else's time and attendance file was in the proper place. With regard to work assignments being taken from her from January - February 2002, complainant testified that one assignment was taken from her and given to a district employee who lacked a public affairs background. Complainant further testified that although she is a GS-11 employee, she was told on several occasions to run the front desk. However, complainant acknowledged that other arrangements were made and she did not perform this duty. Complainant claimed that agency management failed to take action to stop the harassment inflicted upon her. Upon review of all of the incidents set forth in complainant's claim of retaliatory harassment, we find that complainant has not established by a preponderance of the evidence that the agency's explanation for the alleged actions was pretext intended to mask discriminatory intent. The agency presented legitimate, nondiscriminatory reasons for its actions. With regard to certain alleged actions, the agency denied that such incidents occurred. Complainant did not prove that such incidents occurred. Rather, complainant stated that the potential actions were mentioned, but she acknowledged that such actions were not effected against her. We find that the alleged actions that did occur and those that were merely discussed are not sufficiently severe or pervasive to constitute harassment. Based on the record as a whole, we find that complainant was not subjected to harassment in reprisal for her previous EEO activity. After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's decision, because a preponderance of the record evidence does not establish that race, reprisal, or sex discrimination occurred. 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 March 28, 2005 __________________ Date 1The selectee declined the position and the agency allowed the job certificate to expire. �