01985358
07-30-2001
John Battaglia, Complainant, v. Donna A. Tanoue, Chairwoman, Federal Deposit Insurance Corporation, Agency.
John Battaglia v. Federal Deposit Insurance Corporation
01985358
July 30, 2001
.
John Battaglia,
Complainant,
v.
Donna A. Tanoue,
Chairwoman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01985358
Agency No. RTC95-28
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleged that he was discriminated against when:
(1) on the basis of reprisal (prior EEO activity), he was falsely
accused of being responsible for approving an unauthorized expenditure
for a contractor;
(2) on the basis of sex (male) and reprisal, he was subjected
to both sexual and non-sexual harassment, from August 1993 through
November 1994;
(3) on the basis of sex and reprisal, his recommendations for three
members of his staff to receive performance awards were denied in
late October 1994;
(4) on the basis of reprisal, complainant was not selected for
the following positions: (a) Manager-Accounting, RTC-FSC-5228, LG-15,
which was posted on April 25, 1995, and closed on May 9, 1995; (b)
Director, Financial Operations, RTC-FSC-5222, E-301-1, which was posted
on February 21, 1995, and closed on March 6, 1995. The position was
subsequently downgraded to an LG-14 and filled without re-advertising;
and (c) two LG-15 manager positions which were awarded to two female
employees on August 11, 1995;
(5) on the basis of reprisal, on September 28, 1995, Director A
(male), Financial Operations, provided complainant a letter notifying him
that his appointment would not be renewed, effective December 29, 1995.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
under a term appointment as a Supervisor, Budget Section (LG-14) at the
Resolution Trust Company (RTC), Dallas, Texas. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on March 31, 1995. At the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a FAD
by the agency. Complainant requested that the agency issue a FAD.<1>
Complainant worked under Manager A (female, first-level supervisor),
who was, at the time, Manager, Office of Financial Administration.
Prior to the present complaint, in January 1992, complainant filed an EEO
complaint. The EEO complaint was filed against Director A, complainant's
second-level supervisor) for alleged sexual advances. See Exhibit 31,
page 11. Two years later, complainant was identified by a third-party
contractor of the agency's as having requested the contractor's services.
When the request for services was subsequently deemed unauthorized by
the agency, the complainant became involved in the agency's process in
resolving the disputed invoice, which the agency, in the end accepted.
As a result, complainant alleges the agency accused him of having been
responsible for an unauthorized expenditure. Subsequently, in July of
1994, a meeting between complainant and Manager A deteriorated into a
confrontation during which the complainant and Manager A used profane
language. Prior to the July 1994 incident, complainant claims that
Manager A had, on other occasions, used profane and sexually explicit
language in the office. Complainant further alleges he was subsequently
passed over for a number of promotions, and finally, complainant's term
of employment was not renewed.
In its FAD, with respect to Issue #1, the agency concluded that
complainant did not establish a prima facie case of reprisal because
he did not show that the accusation adversely affected him; that
the protected activity affected the agency's actions in paying the
contractor; or that the agency's management was solely responsible,
since it was the third-party contractor who argued that complainant
approved the work in dispute. The agency, however, acknowledged that
complainant engaged in protected activity and that pertinent managers
had knowledge of the protected activity. With respect to Issue #2,
the agency concluded that some of the comments made about complainant
were not corroborated; that the use of profanity and sexually explicit
language that was corroborated was not pervasive enough to create a
hostile and abusive work environment; and that viewing the totality
of the circumstances from both the perspective of the complainant and
that of a reasonable person in complainant's position did not support
complainant's allegation that because of his sex and reprisal, he was
subjected to sexual and non-sexual harassment. With respect to Issue #3,
the agency found that the employee awards for complainant's subordinates
were not denied, but were delayed due to the depleted state of the
budget for the 1994 fiscal year. With respect to Issue #4, the agency
found that with respect to his non-selection for VA No. RTC-FSC-5228
complainant established a prima facie case of reprisal, but that the
selectee was better qualified. With respect to VA No. RTC-FSC-5222, the
agency found that complainant's non-selection was not based on reprisal,
but because he was not qualified for the position, and that, in any event,
the selecting official did not have any knowledge of complainant's prior
EEO activity. In addition, with respect to the other two positions for
which complainant was not selected, the FAD found that the positions
were not LG-15 positions, but LG-14 positions, and thus that complainant
made no showing of an adverse personnel action. With respect to Issue
#5, the agency found the individual responsible for the non-renewal,
Vice President A, did not have knowledge of complainant's prior EEO
activity, and thus that complainant failed to establish a prima facie
case of reprisal, and that, in any event, the RTC was scheduled to,
and did in fact, close on December 31, 1995.
On appeal, with respect to Issue #1, complainant contends that in order to
establish a prima facie case of reprisal discrimination, he did not need
to show that he was subject to an adverse effect or adverse action; and
that reliance on the third-party contractor for support of the agency's
allegation against complainant is without merit. With respect to Issue
#2, complainant disputes the agency's findings, involving the lack of
corroboration and pervasiveness of the alleged harassment. Complainant
also suggests that certain employee affidavits referred to by the agency
would differ, if given today, from when they were given at the end of
1995, when the RTC was scheduled to close. With respect to Issue #3,
complainant argues that the denial of staff awards in 1994 was intended
to have a negative and discriminatory effect on the complainant and his
subordinate staff. Complainant did not appeal the FAD's findings with
respect to Issue #4. With respect to Issue #5, complainant argues that
Vice President A signed the termination notices because Vice President
B had recently resigned. In complainant's view, it was Vice President
B, Director A, and Manager A, who decided that complainant should be
terminated. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Reprisal Allegations
In general, claims alleging reprisal are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases). A complainant must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination, i.e., that a prohibited reason
was a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (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 (December 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt, 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 engaged in a protected activity; (2) the agency
was aware of his protected activity; (3) subsequently, he was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse action. The causal connection may be
shown by evidence that the adverse action followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. Simens v. Department of Justice, EEOC Request No. 05950113
(March 28, 1996) (citations omitted).
We additionally note that the statutory retaliation clauses prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity. Petty slights and trivial annoyances are not actionable,
as they are not likely to deter protected activity. More significant
retaliatory treatment, however, can be challenged regardless of the level
of harm. As the Ninth Circuit has stated, the degree of harm suffered by
the individual �goes to the issue of damages, not liability.� Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) (�the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination�whether based on race or some other
factor such as a motive of retaliation � is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]�). The retaliation provisions set no qualifiers on the term
�to discriminate,� and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).
Issue #1�False Accusation
At the outset, we agree with complainant that an allegation of being
falsely accused of responsibility for approving an unauthorized
expenditure for a contractor could support a finding of retaliation.
As discussed above, the critical question is whether the alleged action
by the agency was reasonably likely to deter protected activity by the
complainant or other employees. To the extent the agency was suggesting
that complainant did not state a claim because he was not adversely
affected in terms of his employment (e.g., disciplined), the FAD erred.
However, we find that complainant has not sufficiently established
the nexus between the allegation and the protected activity, i.e., the
prior complaint in January 1992. It was not until two years later that
the controversy over authorization of the contractor's work developed.
Complainant alleges that Management Official A and Management Official
B were responsible for the alleged false accusation. Neither official
has been alleged by complainant to have been in any way involved in the
January 1992 complaint. Indeed, Management Official A indicated he
did not have knowledge of complainant's prior EEO activity. Management
Official B stated that he vaguely remembered a previous EEO settlement.
Complainant presents no direct evidence of retaliatory motive.
Moreover, the cases that accept mere temporal proximity between an
employer's knowledge of protected activity and an adverse employment
action as sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be �very close.� Clark
County School District v. Breeden, 532 U.S. ___ (2001) (action taken
20 months later suggested, by itself, no causality at all). See also
EEOC Compliance Manual on �Retaliation, supra, at 8-20 (Typically the
link that the protected activity and the adverse action are related is
demonstrated by evidence that the adverse action occurred shortly after
the protected activity and the person who undertook the adverse action was
aware of the complainant's protected activity before taking the action.).
Accordingly, we conclude that complainant failed to establish a prima
facie case of reprisal.
Furthermore, the agency, in its FAD, suggests that in an effort to avoid
litigation, the agency's management, acting upon advice from the legal
department paid the contractor's invoice. The agency thus noted that:
(1) although there was a factual dispute in terms of who was responsible
for requesting the services, the services had been rendered, acceptable,
and billed at a fair market value; and (2) the agency's liability
for breach of an implied-in-fact contract was at least 50% probable.
The agency further suggested that, in paying the contractor's invoice,
it did not necessarily accept the contractor's allegations. We have
reviewed an October 20, 1994, agency legal concurrence memorandum, for
purposes of settling the claim, from the RTC's legal counsel in Dallas to
the Dallas Vice President, indicating that while the contractor alleged
that complainant authorized the work, the complainant denied that he
made such authorization. The memorandum does not make a credibility
determination. Thus, it is apparent that the agency denies accusing
complainant of any misconduct. Therefore, in any event, we find that
complainant has failed to demonstrate, by a preponderance of the evidence,
that the agency's reason for its action, i.e., avoid litigation by paying
the disputed invoice, was pretextual, that is, it was not the true reason
or that the action was influenced by legally impermissible criteria.
Issue #2�Harassment
As discussed above, the important question is whether the treatment
by the agency was reasonably likely to deter protected activity by the
complainant or other employees. To the extent the agency was suggesting
that complainant did not state a claim of reprisal because he was not
subjected to harassment sufficiently pervasive to alter the conditions
of employment and create an abusive working environment, the FAD erred.
Nevertheless, we find that complainant has not sufficiently established
the nexus between the allegation and the protected activity, i.e., the
prior complaint in January 1992. Complainant alleges that the harassment
lasted from August 1993 through November 1994. See Breeden, supra; EEOC
Compliance Manual on �Retaliation�, supra. Complainant alleges that
Manager A, his immediate supervisor, was responsible for harassment,
which was in the nature of profanities and sexually explicit language.
However, Manager A has not been alleged by complainant to have been in
any way involved in the January 1992 complaint. To the extent there may
have been other individuals involved in harassing complainant during
the time frame alleged in the complaint, they have not been identified.
Although Manager A acknowledged that complainant told her in August 1993
that he had filed EEO complaints, in the instant complaint the earliest
specifically dated incident of alleged harassment, involving Manager A, is
July 15, 1994, almost a year later. See Breeden, supra; EEOC Compliance
Manual on �Retaliation�, supra. In addition, complainant's evidence,
concerning harassment by Manager A, is sex-based. Complainant appears
to assume, incorrectly, that the alleged sex-based harassment is per
se reprisal-based. Complainant has failed to sufficiently establish
that the sex-based harassment was also reprisal-based. To the extent
complainant has alleged non-sex-based harassment, he has not provided
concrete evidence in support. Complainant presents no direct evidence
of retaliatory motive.
Issue #3�Staff Awards
According to complainant, he recommended three staff awards, two
recommendations dated September 30, 1994, and one dated October 3, 1994.
The agency indicated that the awards were not denied, but delayed
because of the depletion of 1994 fiscal year funds. Complainant does
not dispute that the agency made the awards in April and July of 1995,
as stated by Manager A.
Complainant, on appeal, argues that the number and amount of awards
received by an employee was one of the criteria for determining which
employees would be retained by the agency past the December 31, 1995,
sunset date of the RTC. Complainant also argues that Manager A intended
that the denial of staff awards in 1994 was to have a negative and
discriminatory effect on the complainant and his subordinate staff.
Again, we find that complainant has failed to show a nexus between
his earlier protected activity and the delay in the staff awards.
Complainant does not show how the delay in the awards materially affected
the employees' subsequent employment opportunities past the December
31, 1995, sunset date of the RTC. The awards in April and June 1995
should have allowed sufficient time for the employees' awards to be
appropriately considered by RTC managers before the sunset date of the
RTC. Complainant's argument that Manager A intended that the actions,
involving the staff awards, have negative and discriminatory effect is
unsupported. Indeed, complainant does not dispute the agency's position
that 1994 fiscal year funds were depleted at the time the agency was
considering complainant's award recommendations. Complainant has failed
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or that the
action was influenced by legally impermissible criteria.
Issue #5�Complainant's Termination
We find that complainant has failed to show a nexus between his earlier
protected activity and his termination. There is no indication, with
the exception of Director A, that any of the individuals complainant
alleges were involved in his termination were in any way involved in
his prior EEO activity. With respect to Director A, complainant does
not present any detail how Director A was involved in his termination.
Complainant does not dispute that Vice President A was the responsible
management official, and that Vice President A did not have knowledge
of his prior EEO activity. Complainant has presented no direct evidence
of reprisal.
It is undisputed that the RTC was scheduled to close, and did close, at
the end of 1995. Although complainant states that thirty employees from
approximately 300 employees at the RTC Southwestern Regional Offices were
not terminated, he does not suggest that absent reprisal, he should or
would have been one of the employees retained. Complainant has failed
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or that the
action was influenced by legally impermissible criteria.
Sexual Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an �objectively hostile or abusive
work environment� is created when �a reasonable person would find [it]
hostile or abusive: and the complainant subjectively perceives it as
such.� Harris, supra, at 21-22. Thus, not all claims of harassment
are actionable.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission 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). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No. 05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
While the agency concedes that Manager A used inappropriate and offensive
language at times, complainant does not sufficiently detail the alleged
harassment in accordance with the standards suggested above, especially
with regard to frequency. Complainant indicated that Manager A's
offensive language was filled with such words as �f_ _ _� and �d _ _
_� and derivatives/integrations of those words. Complainant also was
offended by Manager A's purported remarks that married men were not
good employees and that complainant made a mistake by getting his wife
pregnant. The agency's investigation of witnesses (female and male)
indicated that Manager A's use of offensive language was non-existent
or infrequent (e.g., once, but not in the last year; on occasion).
Complainant suggests that certain witnesses in the investigation were less
than truthful and/or misleading in their testimony about the existence of
harassment at the RTC workplace, because they did not want to do anything
to interfere with their chances of obtaining/retaining employment with
the agency or contractors who would continue certain operations for the
agency after the RTC's sunset. However, complainant did not present
any supporting evidence for his argument. Complainant does not allege
any physical harassment. Additionally, there is no indication that
the alleged harassment interfered with complainant's work performance.
Indeed, it appears that complainant performed satisfactorily during his
entire tenure at the RTC, and that Manager A even approved complainant
for an Employee of the Month award.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.<2>
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
July 30, 2001
Date
1 In anticipation of the RTC's closing on December 31, 1995, authority
to process discrimination complaints filed against the RTC was given
to the agency on March 31, 1995. Accordingly, complainant's case was
processed by the agency's Office of Diversity and Economic Opportunity.
2 Harassment claims and reprisal claims may be susceptible to
fragmentation. The Commission has recognized that in the process
of fragmentation of complaints, an agency can improperly render
non-meritorious, otherwise valid and cognizable claims, in failing to
properly distinguish between factual allegations in support of a legal
claim and the legal claim itself. See Redmon v. Office of Personnel
Management, EEOC Request No. 05991100 (August 25, 2000). The Commission's
analysis in this case has also duly considered the FAD in light of the
agency's fragmentation of the complaint.