0120073770
04-26-2010
Shirley G. Cullom, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Shirley G. Cullom,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120073770
Agency No. 0208-2007016
DECISION
On August 31, 2007, complainant filed an appeal from the agency's August
6, 2007, final decision concerning her equal employment opportunity (EEO)
complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented is whether complainant has established that the
agency discriminated against her on the bases of race, sex, and age as
set forth below.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Electrical Engineer in the Transmission Planning Department of
the agency's Power System Operations facility in Tennessee.
On February 8, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (Black), sex (female),
and age (41) when:
1. based on sex and race, management granted her a 3.53 % pay raise
on or about November 21, 2006, which she believed was less than that
received by coworkers;
2. on or about December 2006, she discovered that she was paid less
than younger male and female senior level B engineers in her organization
with much less service time.
And based on complainant's race and sex when she was harassed in that:
3. Management did not give her a gift upon the birth of her first
child, on or about February 1, 1996;
4. Management allowed a document to be left anonymously in her chair
in or about January 2000 asking her to go to the restroom to clear her
throat;
5. Her manager spoke to her in a loud offensive tone in April 2004;
6. Her manager brought three-month old muffins to her birthday
celebration in or about November 2004;
7. Her manager shouted at her and banged his first on a table in
or about March 2005;
8. Her manager stalked her between Fall 2005 and October 2006
by eavesdropping on her, following her, and otherwise tracking her
movements;
9. A coworker threatened, on or about October 27, 2006, to "come
after her" for causing her manager's work location to be changed to
remove the manager from her work area; and
10. Due to management requiring her to attend numerous meetings in
January 2007, she experienced undue stress, which caused her to experience
a miscarriage on or about February 4, 2007.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance
with complainant's request, the agency issued a final agency decision
(FAD) pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that
complainant failed to prove that she was subjected to discrimination
as alleged. The agency found that with respect to issue (1) assuming
arguendo that complainant established a prima facie case of race and
sex discrimination, the agency articulated legitimate nondiscriminatory
reasons for its actions; namely, that the organization operates on a
pay-for-performance system and the pay increase that complainant received
was the amount agreed upon with the union for satisfactory performance,
which complainant had received. Further, the agency explained that all
of the employees who received satisfactory service reviews received 3.53%
pay increases in 2006.1 The agency found that complainant failed to
show that the agency's articulated legitimate nondiscriminatory reasons
were pretext for discrimination.
Next, the agency indicated that with respect to issue (2) that she
was paid less than younger male and female senior level B engineers
in her organization who had less service time, the evidence showed
that complainant was paid more than all of the White, younger male
engineers. Additionally, the agency noted that the three black females
that complainant had given as comparators were not valid comparators as
they did not work in the same department as complainant and they were
of the same protected class as complainant. Nevertheless, the agency
indicated that all three comparators were paid less than complainant.
The final comparator that complainant listed, a 56 year old white
male, did make more than complainant but the agency explained that he
received a higher salary than complainant because he worked at several
utilities prior to coming to the agency, and had approximately 20 years
of knowledge of the electric utility industry, the last several years
of which was relevant to the job for which he was hired. The agency
maintained that complainant did not provide evidence which established
that her race and sex were the real reasons that her salary was lower
than this comparator. As such, the agency found that complainant failed
to show that its reasons were pretext for discrimination.
Finally with respect to complainant's allegation of harassment and
hostile work environment, with respect to the seven discrete incidents
that took place over a period of eleven years, the agency found that these
incidents were not severe or pervasive enough to establish a hostile work
environment. The agency indicated that granted, a reasonable person would
find many of the incidents alleged by complainant to be stressful, if
true, but harassment as used in Title VII cases refers to more than being
subjected to stress. The agency found that complainant had not offered
evidence of discrete comments directed against her or disparate treatment
supporting an inference of discriminatory harassment. The agency found
therefore that, based on the evidence, complainant failed to demonstrate
that she was discriminated against based on her race, sex, or age.
CONTENTIONS ON APPEAL
On appeal, complainant contends that specified issues (1, 2, 7, 8,
9, and 10) were not adequately addressed. Complainant asserts that
the incidents that she has experienced over the last eleven years have
created a hostile work environment. First, complainant indicates that,
contrary to the agency's allegation, she experienced harassing incidents
between 1996 and 2000, but was told that the incidents were too old
to include in the complaint. Further, complainant contends that with
respect to issues (1) and (2), the agency only investigated and addressed
the circumstances in her work section which included only a few people.
She maintains that the entire Transportation Planning Department should
have been investigated. She contends that, if investigated, there may be
obvious discrepancies in the salaries paid to women, African-Americans,
and employees over 40. Additionally, complainant contends that the agency
was incorrect in indicating that three younger Black female engineers
were comparators. She indicates that one Black female worked in another
department and one was a male. She explains that only one Black female
worked in her department. She also indicates that the person who received
a lower percentage increase still received more than $10,000.
With respect to issues (7) and (8), complainant contends that her
supervisor admitted several times that he raised his voice to complainant.
Regarding issue (9), complainant maintains that her coworker's threat to
her was not handled according to agency procedures. Complainant indicates
that the coworker received only a verbal warning with regard to this
incident. Finally, complainant explains that the stress due to the daily
meetings that she was forced to attend caused her to have a miscarriage.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law").
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). He
must generally establish a prima facie case by demonstrating that
he 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, 143 (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).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including 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 v. Forklift Systems, 510 U.S. 17
(1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) s/he is a member of a
statutorily protected class; (2) s/he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Upon review, we find that the agency correctly found that complainant
had not demonstrated that she was subjected to discrimination based on
her race, sex, and/or age. The Commission finds that with regard to
issues (1) and (2), the agency articulated legitimate nondiscriminatory
reasons for its actions; namely, that the agency operates on a pay-for-
performance system and, because complainant received a satisfactory
performance rating, her increase was set at 3.53%. Further, we find
that the evidence supports this statement, as others in complainant's
unit who received satisfactory performance ratings also received an
increase of 3.53%. We find that complainant has not shown that the
agency's articulated reasons are pretext for discrimination. On appeal,
complainant argues that the entire Transportation Planning Department
should have been investigated for disparities in pay, the Commission notes
that, in a disparate treatment case, comparisons must be made between
similarly-situated. Moreover, the evidence shows that complainant was
paid more than all of the younger employees.
With respect to complainant's allegations that she was subjected to
a hostile work environment, the Commission finds that the incidents
complained of, even when considered as a whole, are not severe or
pervasive enough to establish a hostile work environment. Further, with
respect to complainant's contentions on appeal, we find the evidence
shows that complainant's supervisor had a habit of raising his voice
to other employees. Therefore, we find the evidence demonstrates
that this was not specific to complainant and while this behavior is
undoubtedly unprofessional, no evidence was presented that it was
because of complainant's race, sex or age. Further, we also find
that the agency acted immediately in confronting and admonishing the
coworker that made the threat to complainant. While we agree that a
verbal warning appears to be a rather tepid response to violence in
the workplace incident, the discipline or lack thereof is only relevant
for comparative purposes such as if complainant had been more severely
punished for similar conduct. Nevertheless, we find the agency addressed
this situation immediately. Finally, we find that complainant has not
shown that her race, sex, or age had anything to do with being required to
attend daily meetings. It is most unfortunate that complainant suffered
a miscarriage, however she has shown neither that the agency's actions
were discriminatory, nor that there was a nexus between this event and
the agency's actions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that
complainant has not established unlawful discrimination, as alleged.
Accordingly, the agency's FAD finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 26, 2010
Date
1 One employee, a White male who received a satisfactory performance
rating, received a lower percentage increase because he was in a higher
pay-band than complainant.
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0120073770
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073770