Blanding v. Department of Justice

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.