01997098
11-15-2001
Donna K. Peterson Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Donna K. Peterson v. Department of Agriculture
01997098
11/15/01
.
Donna K. Peterson
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01997098
Agency No. 950531
DECISION
Donna K. Peterson (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of sex (female), race (Native American), age
(41), and reprisal for prior EEO activity and marital status (single),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq, and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. <1> The appeal is
accepted pursuant to 29 C.F.R. �1614.405. For the following reasons,
the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issues on appeal are whether complainant has proven by a
preponderance of the evidence that she was subjected to unlawful
employment discrimination on the above cited bases when:
after November 22, 1993, she was continuously denied training, as well
as participation in District projects and local workshops;
in 1994, she was removed from the Seward Ranger District Recreation
Department;
after being removed from the Seward Ranger District Recreation Department,
she began receiving harassing phone calls at her house;
in 1994, she was issued a �Cautionary Letter� for using inappropriate
language;
she received a Satisfactory rating for her fiscal year (FY) 1994
performance evaluation;
on November 8, 1994, she was denied a request to be allowed to perform
the duties of her position; and
on January 8, 1995, she received a new position description after some
duties were taken away and given to a younger female.
This complaint was accepted for investigation on January 30, 1998
and the investigation was completed in May of 1998. Following the
investigation, complainant was issued a notice to either elect a hearing
by an administrative judge of the EEOC or receive a FAD on the merits of
her complaint without a hearing. Complainant did not make an election.
Consequently, on August 21, 1999, the agency issued a FAD. In its
FAD, the agency dismissed allegations 6 and 7, finding that they were
previously adjudicated in a prior decision it issued on July 30, 1995. <2>
Further, the agency found that complainant failed to prove that she was
subjected to discriminatory treatment or a hostile work environment in
relation to any of her allegations of discriminatory treatment.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Resource Specialist Interdisciplinary, GS-193-09, (MSI) at the
Chugah National Forest, in the Seward Ranger District, in Seward Alaska.
Complainant raised the following allegations in her formal complaint:
Training
Complainant states that her immediate supervisor does not ask her to
participate in any District projects that would give her the exposure
to assist in her career development. As an example of such omission,
complainant states that in the summer of 1994 there was a Girl Scouts
Wider Opportunity programs in the Seward District in which all of the
adult participants were white married people. As a former girl scout,
complainant states that she would have enjoyed participating in such a
program, but was never offered an opportunity. Additionally, complainant
states that when she asks her supervisor to attend local one and two
day training in such areas as personal computers or writing and lands
workshops, she is not allowed to attend.
Reassignment - Removal from Recreation Department
Between spring of 1989 and fall of 1993, complainant averred that she was
supervised by the Recreation and Land Staff Officer (hereafter LSO) of
the Seward Ranger District. Complainant states that during this period,
she mainly performed mineral duties. Under protest, complainant states
that she was formally removed from the Seward Ranger District Recreation
Department in January 1994. Complainant states that her removal from
the Recreation Department was in retaliation for her former EEO activity.
Harassment
With respect to the harassment allegation, complainant described an
incident she had with an Employee Relations Specialist (ERS) that
occurred on February 3, 1994, as abusive in nature. Specifically,
complainant said that although she informed the ERS that she had a
previously scheduled meeting on February 3, 1994, he showed up in her
office that day and insisted that they meet to discuss the possible
settlement of her EEO complaint. Complainant states that following this
meeting, she received a number of harassing phone calls at home which
she strongly suspects were made by the ERS. Specifically, complainant
states that the calls involved someone at the other end of the line who
would never say anything. The person would then hang up and repeat the
process again until she unplugged her phone.
As another example of harassment, complainant pointed to the
nomination of the LSO for the Hector Grandera civil rights award.
According to complainant, it is a known fact in the Seward District
that she filed EEO complaints against the LSO. Despite knowledge of
this fact, complainant contends that the Civil Rights Representative
(hereafter Representative) for the District nominated the LSO for the
civil rights award. Complainant states that in taking such an action,
the Representative exceeded the bounds of propriety, and compromised
her position as a neutral representative of the employees of the Seward
District. Complainant adds that the agency's Personnel Officer ultimately
approved and sanctioned the civil rights nomination of the LSO, thus,
contributing to a �vile� act of harassment against a minority employee.
Letter of Caution
Complainant stated that she was so angry that she was removed from her
position as a Mineral Specialist in the Recreation Department, that
in a conversation on the matter with the District Ranger, she used an
�off color word� to emphasize her intention to sue the agency and as a
result, she was issued a Cautionary Letter. According to complainant,
the Cautionary Letter remained in her file for one year and could have
been used as a basis for her termination if she was found to engage in
other inappropriate conduct. Complainant adds that other employees in
the office used such colorful language in the past and they were not
similarly disciplined.
Performance Appraisal
With respect to this issue, complainant averred that the performance
evaluation she received in 1994 �was not really great.� As such,
complainant noted that she has to deal with some really difficult
people and situations in her line of work and she still manages to
produce top quality work while maintaining a good attendance record.
Complainant speculated that if her immediate supervisor was to give her
an above average or outstanding performance evaluation, the Seward Ranger
District would �come down on him.�
On November 8, 1994, Complainant was not Allowed to Perform the Duties
of her Position & New Position Description of January 8, 1995
According to complainant, on November 8, 1994, during her performance
evaluation with her then supervisor, the former Timber Staff Officer, she
demanded to be allowed to perform the duties of the position description
(PD) that she worked under in 1988 and her supervisor said �no way.�
Complainant adds that on January 10, 1995, the Seward District Ranger (DR)
reassigned her to a new PD which was the result of a desk audit which
was ordered by the DR in October 1993. Complainant states that the DR
ordered the desk audit because she questioned his decision to create a
new staff position. The effective date of the new PD was January 8, 1995.
CONTENTIONS ON APPEAL
In her appeal, complainant contends that the evidence on record supports
the finding that she was the victim of an extremely hostile, bigoted
and discriminatory work environment. Complainant states that her career
advancement duties were taken from her and given to four married, white
employees with Forestry degrees or background in the Seward Ranger
District Recreation Department. In this regard, complainant argues
that the LSO and the Forest Ranger, who were also white and married
resented the fact that she was a single minority with a social science
degree; thus, they eliminated her from an upwardly mobile career track,
so that the married white employees could take advantage of the career
opportunities. Complainant adds that she was made to perform the minerals
work that these married employees did not want to perform and she was
encouraged to take leave without pay to pursue a degree in geology so
that she could continue to perform the mineral duties. Complainant also
contends that she was subjected to harassment and intimidation not only
by the agency, but also by the contract EEO Investigator and the United
States Postal Service due to the filing of her EEO complaint. Further,
complainant states that although she is a minority employee and she
represents the diversity that the agency states that it wants to achieve
in its workforce, she was subjected to discriminatory treatment when she
discovered and challenged the fact that her job was stolen from her and
given to the white married employees in the Seward Recreation Department.
The agency indicates that the evidence on record supports the findings
it made in its FAD. It requests that the Commission affirm its previous
decision.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in Title VII and ADEA cases
is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). Complainant has
the initial burden of establishing a prima facie case of discrimination.
A prima facie case of discrimination based on sex is established where
complainant has produced sufficient evidence to show that she is a member
of a protected class and she was accorded treatment less favorable than
that given to persons otherwise similarly situated who are not members
of her protected class. Potter v. Goodwill Industries of Cleveland,
518 F. 2d 864 (6th Cir. 1975); Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252
(1981). If the agency articulates a reason for its actions, the burden
of production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason
is discrimination. Throughout the complaint process, complainant retains
the burden of proof to establish discrimination by a preponderance of
the evidence.
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner 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 the petitioner 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 action. Consequently,
we will dispense with an examination of whether complainant established
a prima facie case with respect to the above cited issues and review
below, the reasons articulated by the agency for its actions as well as
complainant's effort to prove pretext.
Allegation 1 - Training
The agency found that some of complainant's training requests were denied
because of budgetary restraints or because the requested training was
not relevant to complainant's duties. Nonetheless, the agency noted that
between November 1993 and June 1995, complainant served on three details
to develop her skills in lands and special use permit administration
and compliance for salvage sales. During this same time period, the
agency found that complainant had been allowed to attend several of
the training workshops that were in her Individual Development Plan.
Further, the agency noted that there was no evidence that complainant
was excluded from participating in teams and work projects during the
pertinent period. In this regard, the agency noted that participants
volunteered for the Girl Scout Wider Opportunities Program and there
was no formal selection process.
Allegation 2 - Reassignment
The agency states that complainant was reassigned based on the results
of a desk audit and workload analysis, which revealed that complainant
was working exclusively in the minerals area. The agency states that
it was also determined that due to the increased number and complexity
of the projects, there was a need to shift the mineral responsibilities
from the Recreation staff to the Timber staff. Subsequently, however,
the agency noted that the Timber staff downsized and the minerals program
was reassigned back to the Recreation Department.
Allegation 3 - Harassment
Addressing the claims raised in this issue, the agency noted that its
Employee Relations Specialist, who met with complainant early on in
the complaint process in an attempt to resolve her complaint, denied
having complainant's home number or calling the complainant at her home.
The agency also indicated that the nomination of the LSO for a civil
rights award was not a discriminatory action. Rather, the agency stated
that the LSO was nominated for this award based on her work with the
Kenaitze Indian Tribe.
Allegation 4 Letter of Caution
The agency found that the DR issued complainant the contested Letter
of Caution because of a tirade she launched on January 24, 1994, in
which she swore at him several times and told him to �get out of my
office.� According to the agency, the Letter of Caution was placed in
complainant's file for one year and has since been removed. The agency
also noted that its penalty guide allowed the DR to take more serious
disciplinary action ranging from a Letter of Reprimand to removal for
complainant's admitted conduct on January 24th.
Allegation 5 FY 1994 Performance Appraisal
With respect to this allegation, the agency noted that complainant
received a summary rating of fully successful for FY 1994 and there was
no evidence that she deserved a higher rating. According to the agency,
three of the elements on complainant's performance appraisal plan:
Communicating Orally and in Writing, Personal Relations, and Health
and Safety Performance involved interaction with other employees.
Given complainant's interpersonal relationship in the office and her
use of inappropriate language, the agency found that her rating on these
elements was accurate.
Based on the above discussion, we find that the agency articulated
legitimate nondiscriminatory reasons for the challenged personnel actions.
Because the agency articulated legitimate reasons for the challenged
personnel actions, complainant must show that those reasons are pretext
for discrimination in order to prevail on her claims of discriminatory
treatment. Except for complainants bare assertions that the agency's
explanations for its actions are not worthy of credence, the record is
devoid of any evidence showing that the agency acted with discriminatory
animus toward complainant. Accordingly, we find that complainant failed
in her attempt to show pretext.
With respect to the harassment claim, the Commission notes that it has
repeatedly found that claims of a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996); Banks v. Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995). Assuming arguendo that the incidents
of harassment raised by complainant in Issue 3 are true, we find that
taken individually or as a group, they are not sufficiently severe to
unreasonably interfere with her work performance. Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993). Accordingly, we affirm the
agency's finding that complainant was not subject to a hostile work
environment.
Allegations 6 & 7: Complainant was not Allowed to perform the Duties of
her Position & was Issued a New Position Description
As a final matter, the Commission notes that the agency determined
in its FAD, that allegations 6 and 7 were inextricably intertwined
with complainant's challenge of her desk audit and classification of
position, which were issues raised in a prior complaint. Based on this
finding, the agency dismissed allegations 6 and 7, ruling that they had
been previously adjudicated. The regulation set forth at 29 C.F.R. �
1614.107(a)(1) provides that the agency shall dismiss a complaint that
states the same claim that is pending before or has been decided by the
agency or Commission. Upon examination, the Commission finds that there
is a lot of overlap between the issues raised in complainant's first
complaint which was filed on November 19, 1993, and the instant complaint.
While in the instant complaint, complainant challenges her placement
under a new PD and asks that she be allowed to perform all of the duties
of the PD she was placed under in 1988, these claims are the product of
complainant's challenge of the classification of her former position
as a GS-09 Resource Specialist Interdisciplinary. Specifically, in
that prior complaint, complainant also demanded that she be allowed to
perform all the duties of her PD (i.e., the land and recreation duties),
and that she be promoted to the GS-11 level. Moreover, we find that
while complainant's demand for a GS-11 led to the initiation of a desk
audit in the fall of 1993, her placement on a new PD in January 1995
was the result of that same desk audit. Consequently, we find that
allegations 6 and 7 are inextricably intertwined with the Position
Classification claim of the previous complaint and thus were properly
dismissed as stating the same claim. See Calvin Smith v. United States
Postal Service, EEOC Appeal No. 01A05178 (September 6, 2001) (while
the complainant expanded on the time frame of his most recent claim,
the Commission found that it was identical in all other respects to his
prior claim and thus properly dismissed as stating the same claim).
CONCLUSION
Therefore, the agency's finding of no sex, race, age or reprisal
discrimination with respect to the challenged personnel actions is
AFFIRMED.
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
11/15/01
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The agency has a policy that allows for the filing of complaints
based on marital status if a Title VII basis is also alleged.
Under the Commission's governing regulations, marital status is not a
cognizable basis. See Lee v. United States Postal Service, EEOC Appeal
No. 01965341 (September 4, 1998); see also 29 C.F.R. �1614.103(a),
1614.105(a) and 1614.107 (a) (1). Accordingly those issue(s) based
solely on complainant's marital status will be included herein only as
background information.
2 Complainant appealed the FAD dated July 30, 1995, to the Commission and
in a recent decision, the Commission affirmed that prior decision. See,
Donna K. Peterson v. Department of Agriculture, EEOC Appeal No. 01980139
(9/14/01).