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. �