Donna K. Peterson Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 15, 2001
01997098 (E.E.O.C. Nov. 15, 2001)

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).