Willer D. Blanding v. Department of Justice 01A21352 March 18, 2003 . Willer D. Blanding, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (United States Marshal Service), Agency. Appeal No. 01A21352 Agency Nos. M990017; M990035; M990054; M000069 DECISION Complainant timely initiated an appeal from a final agency decision (FAD) concerning her complaint 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 Chief Deputy United States Marshal, GS-1801-14, at the agency's District of the Virgin Islands facility. Complainant sought EEO counseling and filed formal complaints on February 12, 1999, June 17, 1999, and August 14, 2000. The agency subsequently consolidated the complaints. In her complaints, complainant alleged the following: She was discriminated against on the bases of her race (Black) and sex (female), when she received a letter of instruction on February 3, 1999; She was discriminated against on the bases of her sex, national origin (non-Virgin Islander), and prior EEO activity when, in February 1999, the United States Marshal (A1) greeted the Supervisory Deputy Marshal (S1) with “Good morning Chief,”<1> and told complainant that he intended to replace her; She was discriminated against on the basis of her sex, national origin, and prior EEO activity when A1 provided copies of complainant's assignments to the Deputy Director (D1), and A1 lied that he had reported the removal of complainant's nameplate to Internal Affairs; and She was discriminated against on the bases of her race, sex, national origin, and prior EEO activity when she was reassigned from the District of the Virgin Islands to the District of New Jersey in May 1999.<2> At the conclusion of the investigation, complainant was informed of her right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. Complainant requested that the agency issue a final decision. In its FAD, the agency found that issue (1) was not an adverse action, noting that the record fails to show that the letter of instruction in any way affected a term or condition of complainant's employment, or otherwise had a deleterious impact on complainant's career. The FAD nonetheless found that assuming the issuance of the letter constituted an adverse action, management provided a legitimate, nondiscriminatory reason for its action; namely, that they issued the letter of instruction because an internal investigation showed that complainant had used a Court Security Officer (C1) to conduct personal business for her. The FAD concluded that complainant failed to establish, by a preponderance of the evidence, that the agency's reason was pretext for discrimination. As to issue (2), the FAD found that the record contained no indication that A1's comments were based on discriminatory animus toward complainant due to her membership in protected groups. The FAD noted that A1 stated he did not want complainant as Chief for other reasons that may not have been the most “professional” reasons, but were lawful. As to the incidents described in issue (3), the FAD found that the record does not persuasively show that complainant suffered a materially adverse employment action. The FAD proceeded to find assuming that the agency's action was an adverse employment action, the record does not show that A1 was motivated by complainant's protected status. As to issue (4), the FAD found that complainant established a prima facie case of discrimination on all of the alleged bases. The FAD then found that the agency articulated legitimate, nondiscriminatory reasons for its action; namely, complainant was reassigned to New Jersey because there were problems between complainant and A1 that were disruptive to the operation of the Virgin Islands District. Complainant was reassigned instead of A1 because he heard from another employee that complainant was willing to accept a reassignment, and complainant admitted that she had said so. The FAD then found that complainant failed to show that the discriminatory animus toward her protected classes motivated the decision to reassign her. Complainant raises no new arguments on appeal. The agency requests that we affirm the FAD. 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). Disparate Treatment 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). She must generally establish a prima facie case by demonstrating that 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). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995). We begin by assuming, arguendo, that complainant established a prima facie case of discrimination on the alleged bases as to all issues. We find that the agency has articulated legitimate, nondiscriminatory reasons for its actions. As to issue (1), the Disciplinary Panel Chairman (P1) stated that complainant was using C1 for personal business, which violates the contract with the contractor. P1 stated that an Internal Affairs investigation was conducted after an anonymous report was made, and the results of the investigation were forwarded to the Disciplinary Panel. P1 stated that the Panel believed that some of the allegations were substantiated, and accordingly, a letter of instruction was issued. P1 further asserted that letters of instruction were not issued to other staff members because allegations of misuse had not been made against them. As to issue (3), A1 stated that he sent copies of complainant's assignments to D1 to let him know that work was being done in those areas. A1 also denied that he failed to take appropriate action in response to the removal of complainant's nameplate. He further stated that he interviewed office personnel, requested a new nameplate, forwarded complainant's memorandum to Headquarters, and requested an internal investigation through D1. As to issue (4), D1 stated that because the situation between A1 and complainant was disruptive to the functioning of the District, he initially advised S1 to sit down with complainant and resolve their differences. D1 stated that subsequently the relationship between A1 and complainant became sufficiently disruptive to the functioning of the District that it was in the best interests of the District, complainant, and the agency as a whole, to find another location for complainant. D1 stated that complainant was subsequently offered several reassignments which she declined. D1 explained that when a position became available in the New Jersey District, complainant was offered the position. D1 stated that complainant indicated she would be willing to accept the position on the condition that the reassignment action was processed as a direct reassignment which would entitle her to a Permanent Change of Station (PCS) at the government's expense. D1 agreed to the condition. D1 asserted that in April 1999, when the reassignment issue was finally resolved, however, there were no PCS funds available to move complainant to New Jersey. D1 offered, however, to allow complainant to be detailed to the District of New Jersey immediately. D1 stated that complainant accepted this offer, which entitled her to receive per diem, a temporary housing allowance, other compensation and one trip to the Virgin Islands, for the duration of her detail. The agency has articulated a legitimate, nondiscriminatory reason for reassigning complainant to the New Jersey District. Complainant raises several challenges to the agency's articulated reasons. We are not persuaded, however, by a preponderance of the evidence, that the agency's reasons were pretexts for discrimination. Harassment The agency analyzed issue (2) under the theory of disparate treatment rather than applying the law developed under the theory of harassment. Based on the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order to prevail on a claim of harassment, complainant must prove that: (1) she was subjected to harassment that was sufficiently severe or pervasive to alter the terms or conditions of employment and create an abusive or hostile environment; and (2) the harassment was based on her membership in a protected class. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). The evidence in the record is insufficient to support a finding that A1's comments to complainant were sufficiently severe or pervasive to alter the terms or conditions of employment and create an abusive or hostile environment. In conclusion, after a careful review of the record, including arguments and evidence not specifically addressed in this decision, we affirm the agency's final decision. 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 18, 2003 __________________ Date 1 The record indicates that complainant, not S1, was Chief at that time. 2 The record reveals that complainant also raised an allegation of sexual harassment by a former United States Marshal in 1995. The agency, however, dismissed this issue for untimeliness. Since complainant does not dispute the dismissal of that issue on appeal, it will not be addressed in the instant decision.
Tag Archives: letter of instruction not adverese action
Blanding v. Department of Justice
Filed under Adverse Empoyment Actions, Case Law, Disparate Treatment