Kasandra Green v. Department of the Army
01A51689
August 3, 2005
.



Kasandra Green,
Complainant,

v.

Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.

Appeal No. 01A51689

Agency Nos. ARCEMEM02AUG0028, AWGLFO0203C0030

Hearing Nos. 250-2003-08060X, 250-2003-08240X

DECISION

Complainant initiated appeals from the agency's final orders concerning
her equal employment opportunity (EEO) 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.   For the following
reasons, the Commission AFFIRMS the agency's final orders.<1>

The record reveals that complainant, a Accounting Technician, GS-525-06
at the agency's USACE Finance Center, Millington, Tennessee facility,
filed a formal EEO complaint on March 15, 2002, alleging that the agency
discriminated against her as follows.

AWGLFO0203C0030

 On the basis of race (Black) when:

  (1) Complainant was denied access to training and software programs;
  Complainant's work was not covered in her absence;

  Complainant had to explain why she needed assistance when she requested
  it and other employees did not;

  On or about February 13, 2002, complainant received an unfavorable
  initial performance review.

ARCEMEM02AUG0028

 On the bases of race (Black) and reprisal for prior EEO activity when:

 Complainant was denied a desk audit;

 On September 10, 2002, complainant's supervisor tried to intimidate her
 when she said “you are not the only employee in the office, and other
 priorities dictated.”

 On September 5, 2002, an EEO Specialist tried to intimidate complainant;

 On July 25, 2002, complainant was not selected for the position of
 Accountant, GS-510-7/9/11;

 On October 8, 2002, complainant was advised by management to alter her
 time sheet and consequently subjected to a written reprimand;

 Complainant's supervisor limited the time complainant was given to
 process her EEO complaint.

At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ).  Prior to commencement of the hearing, the AJ dismissed
complainant's request for a hearing and remanded the case to the agency
for a final decision, stating that complainant had failed to cooperate in
the hearing process when she and her representative repeatedly failed
to appear for a settlement conference scheduled for July 7, 2004.
After failing to appear for the July settlement conference, the AJ had
issued an Order to Show Cause, requesting that complainant explain her
failure to appear.  The record shows that complainant submitted her own
statement together with that of her representative.  Thereafter, by order
dated September 30, 2004, the AJ dismissed complainant's consolidated
complaints from the hearing process, finding that complainant's
explanation was inconsistent with that submitted by her representative.<2>

Subsequently, the agency issued final decisions, dated November 12,
2004 (agency case number ARCEMEM02AUG0028) and January 31, 2005
(AWGLFO0203C0030), finding no discrimination.

With respect to complaint number AWGLFO0203C0030, the agency concluded
that complainant failed to establish a prima facie case of race
discrimination.  Specifically, the agency found that complainant failed to
demonstrate that she had been denied software or training that she needed
to do her job, and also failed to show that similarly situated employees
not in complainant's protected classes were treated differently under
similar circumstances regarding her performance management review in which
complainant received a Memorandum for Record dated February 13, 2002.
Therein, the agency found that complainant's supervisor had provided
complainant with a written counseling regarding areas complainant's
job performance about which she had concerns and documented instances
of complainant's failure to follow instructions. The agency found that
complainant's supervisor had provided similar counseling to four other
employees, not in complainant's protected class.

Moreover, the agency found that, assuming complainant had established
a prima facie case of race discrimination, that the performance review
during which complainant received the memorandum was not an ultimate
employment action and that the explanation offered by complainant's
supervisor for issuing the memorandum was legitimate and not motivated
by discrimination.

Regarding complaint number ARCEMEM02AUG0028, the agency determined that
complainant failed to establish a prima facie case of race discrimination
with respect to any of her claims because, again, she failed to identify
any other similarly situated employees, not in her protected class, who
received preferential treatment.   In particular, the agency notes that
half of the eight selectees for the position of Accountant, GS-510-7/9/11,
were also Black.

The agency did find that complainant established a prima facie case of
reprisal discrimination, inasmuch as the named responsible management
officials in this complaint, were also named in complainant's prior
complaint (agency complaint number ARCEMEM02AUG0030) and were aware of
complainant's EEO activity.  However, the agency found that management
articulated legitimate, nondiscriminatory reasons for its actions.
Namely, the agency found that complainant was denied a desk audit
because she no longer worked in the position (area 302) for which
she had requested the audit.  Further, the agency determined that
complainant was not selected for the Accountant position because her
overall score in the application process did not place her within the
top group of applicants considered for selection.  Lastly, the agency
found that during the investigation, complainant conceded that she was
not instructed to change her time sheet as alleged and that she had not
received a letter of reprimand.

Accordingly, the agency found no discrimination occurred as alleged with
respect to complainant's two complaints.  The instant appeal followed.

On appeal, complainant claims that she was improperly dismissed from
the hearing process, and that the agency's selection process for the
position of Accountant, GS-510-7/9/11 is part of a discriminatory quota
system used by the agency that requires minority applicants to compete
against each other for a predetermined number of openings.

As a preliminary matter, we find that complainant's complaints were
properly dismissed from the hearing process for failure to proceed.
The evidence shows, and complainant does not dispute, that complainant
received the AJ's notice to appear for a settlement conference on July
7, 2004, and specifically that complainant was required to appear in
person, while her representative, and the agency's representative,
were permitted to appear by telephone.  Further, in his order, the AJ
noted and complainant does not dispute, that she had failed to appear
at a previously scheduled settlement conference.  We find the evidence
supports the AJ's determination that complainant's conduct warranted
the cancellation of complainant's request for a hearing.

AWGLFO0203C0030

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment.  The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:” and the complainant subjectively perceives it
as such.  Harris, supra at 21-22.  Thus, not all claims of harassment
are actionable.  Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.

We concur with the agency that complainant failed to show that she was
denied software or training that she needed to do her job, when other
employees were not similarly denied.  Specifically, we find the evidence
shows that while complainant requested that certain programs be installed
on her computer, (for example, Electra), complainant admitted that she
did not really need the software programs to do her job.

We further find that complainant has not shown that the harassment alleged
in complaint number AWGLFO02030030, was motivated by discrimination toward
complainant's race or any other protected class.  Specifically,  we find
that the Memorandum for Record issued to complainant in connection with
her initial performance review was not disciplinary nor a permanent
employment action, but issued for the reasons stated by the agency
concerning complainant's performance and relationship to management and
other employees.  We concur with the agency that complainant was unable
to show that other employees, not in complainant's protected class,
received more favorable performance reviews under similar circumstances.

Accordingly, we find the evidence supports the agency's finding that no
discrimination occurred as alleged in complaint AWGLFO0203C0030.

ARCEMEM02AUG0028

Although the initial inquiry in a discrimination case usually focuses
on whether complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions.  See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether complainant has established
a prima facie case to whether she has demonstrated by a  preponderance
of the evidence that the agency's reasons for its actions merely were a
pretext for discrimination.  Id.; see also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).   In this
case, the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions with respect to the denial
of complainant's request for a desk audit (claim (1)).  Specifically,
the agency stated that complainant's request was initially granted.
Subsequently complainant's assigned tasks changed.  Accordingly, the
agency declined to audit a position to which complainant was not longer
assigned.   We find the record supports the agency's determination that
no discrimination occurred as alleged regarding claim (1).

We observe that in her complaint, complainant alleges that the
incident that precipitated claim (2) occurred on August 15, 2002, and
that complainant's supervisor did not counsel complainant regarding
her conduct until nearly a month later.  Complainant alleged that this
counseling to address the conduct her supervisor found unsatisfactory,
was intended to intimidate complainant and occurred shortly after
complainant's initial EEO contact on August 19, 2002.   We find that the
counseling or discussion described was not punitive or disciplinary,
and that complainant failed to show that the supervisor's remark was
motivated by discrimination.

With respect to claim (3), we find that complainant is not aggrieved by
the alleged remarks of the EEO Specialist with respect to her request
to have her training records updated.  Significantly, we note that
complainant has not alleged that her training records were not updated
and that complainant denied that the EEO Specialist ever referenced
complainant's race or protected activity in conversation.  The record
confirms only that the EEO Specialist requested that complainant
provide additional information  before the training could be noted in
complainant's personnel records.  Accordingly, we find that complainant
has not shown that she was subjected to discrimination when the EEO
Specialist requested additional information prior to updating her
training records.

Regarding claim (4), we concur with the agency, that complainant cannot
establish a prima facie case of sex or race discrimination with respect
to her non-selection for the position of Accountant, GS-510-7/9/11,
for the reason that eight candidates were selected from the list of
eligible candidates and all of the selectees were female, and four
selectees were Black.  We find that complainant's arguments regarding a
quota system are unsupported by the record and that nothing in the record
supports a finding of any nexus between complainant's prior EEO activity
and her non-selection.  Rather, we find that the agency's determination
that complainant was not among the top ranked candidates and therefore
not considered for selection by the selecting official is supported
by the record.  Further, we find that complainant has not shown that
her qualifications were plainly superior to those of the selectees.
We find the agency properly found that complainant did not establish
that more likely than not, her non-selection resulted from discrimination.

In claim (5), complainant alleges that she was instructed to alter her
time sheet and then subjected to a written reprimand after she did so.
As the agency noted in its final decision, complainant stated to the
agency's investigator that she never received any discipline or written
counseling regarding her time sheet.   Complainant stated that she
believed that she would, because she noticed a memorandum that appeared
to be in progress on a supervisor's computer monitor, while she was
discussing the circumstances of her time sheet being corrected with the
supervisor.  We find the evidence supports the agency's determination
that complainant did not show that discrimination occurred as alleged
in claim (5).

EEOC Regulation 29 C.F.R. §1614.605(b) provides:

If the complainant is an employee of the agency, he or she shall have a
reasonable amount of official time, if otherwise on duty, to prepare the
complaint and to respond to agency and EEOC requests for information. If
the complainant is an employee of the agency and he designates another
employee of the agency as his or her representative, the representative
shall have a reasonable amount of official time, if otherwise on duty,
to prepare the complaint and respond to agency and EEOC requests for
information.

The Commission considers it reasonable for agencies to expect their
employees to spend most of their time doing the work for which they
are employed and we find nothing in the record to show that the agency
denied complainant's request for a reasonable amount of official time
with which to pursue the EEO complaint process as alleged in claim (6).

Accordingly, we find the evidence supports the agency's finding that no
discrimination occurred as alleged in complaint number ARCEMEM02AUG0028.

After a careful review of the record, the Commission finds that
complainant failed to present evidence that any of the agency's actions
in either complaint were motivated by discriminatory animus toward
complainant's protected classes.<3>  We therefore AFFIRM the agency's
final orders finding no discrimination.

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 3, 2005
__________________
Date
1Complainant's two complaints, agency
case numbers ARCEMEM02AUG0028 and AWGLFO0203C0030, were consolidated
for processing and for hearing by the Administrative Judge (AJ).
Subsequently, the agency issued two separate final decisions, which we
have consolidated in this decision.  See 29 C.F.R. § 1614.606.


2We observe that the AJ found that complainant had also failed to
appear for a previous settlement conference and that complainant's
representative concedes to administrative error regarding her failure
to note the correct date for the second settlement conference.

3We note that although complainant may have indicated that she was
discriminated against on other bases in her complaints, she has not
claimed on appeal that the agency mistakenly failed to list some bases.
Nevertheless, we find that complainant has failed to show that any action
in either complaint was motivated by discrimination on any bases covered
under EEO laws.

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