0120072099
02-04-2009
Valerie Hinton, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.
Valerie Hinton,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120072099
Agency No. PV-05W-40
DECISION
Complainant filed an appeal from the agency's February 12, 2007 final
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.,
and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as an Aeronautical Analyst at the agency's Aeronautical Branch
facility in Arnold, Missouri. Complainant had been hired by the agency
on November 14, 2004, and under the terms of her position, was required
to fulfill a two-year probationary period. On November 29, 2004, during
a meeting with other employees,1 complainant questioned the rate of pay
she was receiving compared to that being paid to White male employees.
Thereafter, complainant claims she was subjected to disparate treatment
for having expressed her opposition to the pay structure. On December
1, 2006, complainant filed an EEO complaint alleging that she was
discriminated against on the bases of race (African-American), sex
(female), and in reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when:
1. On May 19, 2005, complainant determined that her work had been
deleted;
2. Due to misinformation from management, complainant was not
considered for training opportunities (tuition assistance program);
3. On July 11, 2005, complainant's request to transfer to another
unit in NGA was denied;
4. On July 27, 2005, S1 and S2 informed complainant that she had
been targeted by management for questioning her salary compared to male
employees;
5. On August 2, 2005, complainant was told by management that her
training progress would be judged by subjective standards; and
6. Complainant was terminated on September 8, 2005, during probation,
for poor performance and conduct.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b).
In its decision, the agency found that with respect to claim (1),
complainant could not identify the person responsible for deleting
her work. Accordingly, the agency found that complainant did not show
that her work was deleted by the agency because of discrimination on
any basis.
With respect to claim (2), the agency found that while complainant was
initially informed incorrectly, she was provided with accurate information
on June 16, 2005. Complainant did not apply for tuition assistance,
the agency found. Accordingly, the agency found that complainant did
not show sex, race, or reprisal discrimination occurred as alleged with
respect to claim (2).
Regarding claim (3) (transfer to another station), the agency found
that complainant's fourth level supervisor (S2) informed complainant's
immediate supervisor that complainant's request for a transfer
was not approved because complainant was only a marginal performer.
Complainant's second line supervisor (S1) indicated that complainant was
not qualified for the job to which she wished to be transferred because
did not possess a college degree or substantial experience. The agency
noted that complainant did not rebut the agency's non-discriminatory
reasons for its actions. The agency concluded that discrimination did
not motivate the agency's actions described in claim (3).
In claim (4), complainant claimed that she felt she was treated
differently by the agency after she questioned her salary. Specifically,
complainant questioned why White males, (and in particular, a White male
employee with no college degree), were brought in at a higher salary than
she was being paid.2 Agency officials (S1 and S2) stated that complainant
raised her questions regarding pay during a meeting and that complainant
herself expressed to management that she felt targeted thereafter.
S1 and S2 denied targeting complainant for harassment because of her
statements regarding pay. The agency found that complainant did not
rebut the agency's explanation.
Regarding claim (5), the agency found that complainant did not identify
any employees, not in her protected classes, who had different performance
standards than she did during training. Rather, the agency found that
complainant was provided with the same training and same evaluation
procedures that all new hires were given. The agency found no evidence
of complainant's claim that other hires were given information that she
was not given.
The agency considered the incidents described in claims (1) through (5)
as an overall claim of harassment and found that assuming the incidents
occurred as alleged, taken together they were not so severe or pervasive
that they rose to the level of harassment based on sex, race or reprisal
for prior EEO activity.
Regarding complainant's removal claim (6), the agency considered
the evidence of several of complainant's trainers together with the
statements of her supervisors. Three trainers reported that complainant
was a quick learner and that her work was satisfactory. However, S1
found that complainant did not take criticism well, blamed others for
her own mistakes, was rude to other employees, and displayed hostility
towards others at work. The agency noted that employees may be removed
for unacceptable conduct or poor performance during their probationary
period. The agency cited a number of instances where complainant
displayed poor conduct during her probationary period that included
resistance to instruction and refusal to take responsibility for mistakes.
The agency found that complainant did not show that the agency's reasons
for terminating her were a pretext to mask discrimination.
The agency's final decision concluded that complainant failed to prove
that she was subjected to sex, race or reprisal discrimination as
alleged.
On appeal, complainant states, among other arguments, that the opinions
of her trainers are at odds with the statements of S1 and S2 concerning
her performance and that standards for production, which her work would
have met, were set after she was terminated. Complainant notes that
after she questioned her pay, she was treated differently, including
being treated differently by the trainers.
ANALYSIS AND FINDINGS
As 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, 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 he or
she 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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we find that complainant has not shown that
the non-discriminatory explanations provided by the agency for its
actions were pretext and that the agency was motivated by sex, race or
by reprisal. We view, as did the agency, complainant's claim as an
overall claim of harassment and also consider claim (6) (termination)
as a separate claim.
With respect to claim (1), (work deleted from computer) we find nothing
in the record indicates that complainant's work was deleted from her
computer as a result of actions taken by the agency. We further find
that the agency responded appropriately to complainant's allegations in
light of the absence of any evidence that her computer's security had
been compromised.
Regarding claim (2) (tuition assistance program), we note there is no
dispute between complainant and the agency regarding the facts of this
claim and find that the agency's failure to provide complainant with
accurate information was not shown to be discriminatory. We find no
evidence showing that complainant's sex, race or prior EEO activity
play any role in the agency's initial misrepresentations to complainant
regarding her eligibility for tuition assistance and agency-funded
training opportunities. According to the agency, the error was due to
the fact that her supervisor did not know that complainant's previous
federal experience would qualify her for tuition assistance. We find
the agency's actions were not shown to be discriminatory.
In claim (3), we find that complainant has not identified any similarly
situated employees who were granted a transfer such as the one complainant
requested, under similar circumstances. Complainant's supervisors cited
complainant's performance as motivating their denial of her request
and even complainant's trainers questioned complainant's desire to be
transferred to a position where she would require new training after only
recently being trained in her current position. While complainant argues
that her performance was satisfactory, we find that complainant has not
shown that the agency's decision to deny her transfer request was based
on her protected bases. Further, complainant has not presented persuasive
evidence to show the agency's stated reasons were unworthy of belief.
Turning to claim (4), we find that this claim, by itself, does not
allege a specific harm that complainant suffered (being "targeted"
by management) apart from alleging an element of complainant's overall
claim of harassment. We therefore find no discrimination with respect
to this incident.
Claim (5) describes an incident that from complainant's point of view,
added to the hostile environment she endured during her tenure with the
agency. However, we find that she was not harmed by being informed of
the subjective standards by which her work would be evaluated. Any harm
would occur after complainant had received an evaluation she believed
to be discriminatory based upon the subjective standards. Even so,
we find that complainant has not alleged, nor presented evidence to
show that other employees in her position were provided with objective
standards during the time frame that she was evaluated. Accordingly,
we find that this incident does not describe an actionable claim apart
from claim (6), wherein complainant was ultimately removed from her
position based on her performance and conduct.
In claim (6), complainant states that she was terminated for reasons
that are not worthy of belief. Specifically, complainant states that
her production levels were comparable to other employees not in her
protected groups, and that she had received no notice from the agency of
any conduct issues prior to the time she was removed from her position.
We observe that complainant had not completed a two-year probationary
period at the time she was removed from her position. Further, we
find that statements from complainant's trainers indicate that she
progressed at a satisfactory rate. One of complainant's supervisors
acknowledges that when pressed, complainant could perform her work at an
acceptable rate. Nevertheless, we find that complainant has not shown
that the incidents of unacceptable conduct described by S1 did not occur,
nor has complainant shown that other employees with her performance and
conduct issues were not also terminated. We note that S2 states that
two of complainant's coworkers (E1, a White female employee, and E2, a
White male) were also not retained by the agency after similarly failing
to perform at an acceptable level. We find the evidence inadequate to
show that complainant was removed from her position based on her sex,
race, or in reprisal for her prior EEO activity.
We consider claim (6) alone, and together with complainant's overall
claim of harassment claims (1) through (6)). We find that complainant
has not shown that she was subjected to unwelcome behavior based on her
race, sex, or reprisal that was either so severe or pervasive so as to
alter the terms and conditions of her work.
We AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
February 4, 2009
__________________
Date
1 Complainant claims that no more than seven employees were present
when she openly questioned her pay and expressed her belief that the pay
structure was discriminatory. S1, complainant's fourth level supervisor,
stated that approximately 30 employees were present.
2 Complainant did not allege that she was paid less than male employees
performing similar work as a separate claim of the instant complaint.
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0120072099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120072099