01982261cornell-white
03-27-2001
Catherine Cornell-White, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Catherine Cornell-White v. Department of Transportation
01982261
March 27, 2001
.
Catherine Cornell-White,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01982261
Agency No. 95-0526
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the basis of sex (female) and race (White) when: (1) she
was subjected to a hostile work environment, and (2) she was given less
favorable work assignments than male, non-white coworkers. Additionally,
complainant alleged that she was discriminated against on the basis of
reprisal (prior EEO activity), sex (female), and race (White) when: (3)
she was given an unfairly low performance appraisal which disqualified
her from receiving a financial bonus, and (4) the agency ultimately
discharged her from her position.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Aviation Security Specialist (Special Agent), GS-1801-12, in the
agency's Cleveland Civil Aviation Security Field Unit (Cleveland Field
Unit), Cleveland, Ohio, Federal Aviation Administration (FAA) facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on May 9, 1995.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(AJ) or, alternatively, to receive a final decision by the agency.
Complainant requested a hearing before an AJ, but later requested that
the agency issue a final decision. The agency issued a final decision.
Complainant began her employment with the FAA as a clerk-typist in
November 1989. In September 1991 she successfully bid for a job opening
in the Cleveland Field Unit as a Special Agent. She progressed yearly
in grade from GS-05 to GS-12, step 1, which she attained in January 1995.
With respect to complainant's hostile environment allegation,
she indicates that from the beginning of her employment with the
Cleveland Field Unit, she detected �unfriendliness and/or animosity.�
Complainant claims that this �hostile atmosphere� was the result of
a rumor started by the Lead Special Agent (Black male), GS-1801-13,
that she had obtained her job and excellent performance evaluations as a
result of a sexual affair she was purportedly having with the Cleveland
Field Unit's Supervisor (White male), GS-1801-13. Indeed, complainant's
allegations of hostile environment discrimination are based largely
upon complaints about the Lead Special Agent's conduct, when he was
acting supervisor. Complainant thus alleges that the Lead Special Agent,
when serving as acting supervisor in the absence of the Cleveland Field
Unit's Supervisor, treated her and Special Agent A (White female) in
an unfair and hostile manner. She asserts that the Lead Special Agent
changed established policies and threatened them with disciplinary action.
Moreover, complainant alleges that the Lead Special Agent did not treat
Special Agent B (Black male) in such a hostile manner.
In addition, on May 9, 1995, an incident occurred, involving complainant
and Special Agent B. There was a dispute between the two employees
regarding the work schedule complainant had drafted. Complainant alleges
that there was an altercation, and that Special Agent B hit her and also
yelled obscenities. Finally, complainant alleges that in addressing the
May 9, 1995, incident, the Manager (Black male), Chicago Civil Aviation
Security Field Office (Chicago Field Office), Chicago, Illinois,<1>
refused to allow complainant's husband or Special Agent A to represent
her in a meeting the same day. The Cleveland Field Unit also included
an administrative employee, a Security Assistant (White female).<2>
With respect to her performance appraisal allegation, complainant received
�excellent� performance evaluations up until her last one on May 15, 1995.
Although her May 1995 performance appraisal was fully satisfactory,
she did not qualify for a financial bonus.
With respect to the work assignment allegation, she indicates that she was
given less favorable work assignments than her non-white male co-workers.
Complainant further alleges that the Lead Special Agent forced her to
perform some of his duties, including inspections, reports, and being
on-call.
With respect to the discharge allegation, after the incident of May 9,
1995, complainant obtained approval for sick leave and was subsequently
granted 236 hours of advanced sick leave by the agency. Thereafter,
complainant was on leave without pay (LWOP) status until March 10, 1996.
On March 1, 1996, the complainant's second level supervisor, the Chicago
Field Office Manager, issued her a letter advising that her absence
from October 4, 1995, to March 10, 1996, would be considered as LWOP
(her previous LWOP had expired on October 3, 1995). However, the Chicago
Field Office Manager ordered complainant to report for duty on March 11,
1996, and warned that her failure to report for work would place her in
an absence without leave (AWOL) status, which could lead to disciplinary
action, up to and including removal. Complainant's attorney submitted a
letter, dated March 11, 1996, in which she requested continuation of her
LWOP status �until this matter is resolved.� Complainant did not appear
for work as ordered, and the agency issued a letter proposing her removal
for AWOL on April 4, 1996. Complainant did not reply to the letter.
On May 6, 1996, the agency issued the removal letter, effective that date.
Complainant alleges that as a result of the years of hostility, and
discriminatory and unequal treatment, she suffered severe depression,
which as of the date of the complaint, precluded her from returning to
work.
In its FAD, with respect to complainant's hostile environment allegation,
the agency concluded that complainant failed to establish a prima
facie case. The agency noted that the evidence indicated that there
had been conflict between complainant and all the employees in the
Cleveland Field Unit. In addition, the FAD pointed out that there was
testimony from Special Agent A and the Security Assistant indicating
that the Lead Agent's change of office rules, job schedules, and
job descriptions was applicable to all agents under the Lead Agent's
authority. The FAD additionally found that the Chicago Field Office
Manager assured complainant that the Lead Agent did not have the power
to take disciplinary action against complainant, and that complainant's
concern about the Lead Agent's directing agents to make daily trips to the
airport was at his (Chicago Field Office Manager's) direction. Moreover,
the FAD concluded that management's failure to squelch the rumor about
her and the Cleveland Field Unit Supervisor was due, in part, because
the Supervisor himself was not aware of the rumor until a February 1995
meeting. The FAD pointed out that the May 9, 1995, incident involved
contradictory testimony, to the extent Special Agent B denied striking
complainant, although he acknowledged using profanity and shouting
at complainant. Regarding complainant's relationship with the Lead
Agent generally and the May 9, 1995, altercation with Special Agent B,
and related events, the FAD concluded that the evidence did not show a
nexus between any of the actions and complainant's race or sex.
With respect to the work assignment's allegation, the FAD concluded that
complainant established a prima facie case, although the agency's position
was that the Lead Agent was not similarly situated to complainant. The
agency also claimed that part of the reason for its treatment of the Lead
Agent was due to a settlement of prior EEO complaints filed by the Lead
Agent, and that there was a lack of nexus between complainant's race and
sex and the assignments she received. Indeed, it was additionally noted
that the Cleveland Unit's Supervisor and the other Special Agents at the
Cleveland Field Office, indicated complainant was perceived as having
received preferential treatment from the Cleveland Unit's Supervisor in
terms of assignments.
With respect to complainant's retaliation-related allegations, the FAD
found that the Cleveland Field Unit's Supervisor knew she was meeting
with an EEO counselor on May 9, 1995. The FAD also acknowledged that the
allegedly discriminatory performance rating was signed by the Supervisor
on May 19, 1995, and that the complainant's discharge also took place
effective May, 6, 1996.
Nevertheless, with respect to complainant's May 19, 1995 performance
appraisal, the FAD found that complainant failed to establish a prima
facie case of discrimination (retaliation, sex, or race). It noted
that she was rated higher than Special Agent B (rating of 1.60 compared
with 1.40). The FAD pointed out that although her previous performance
rating was 2.45, this rating was given to her when she was evaluated as a
GS-11 agent. The FAD relied on the Cleveland Field Unit's Supervisor's
explanation, that complainant's performance was evaluated in terms of
the expectations of a GS-12 Agent, while her previous evaluations were
at GS-11 and GS-09. The FAD also pointed out there was no evidence of
any negative remarks regarding her performance in the evaluation, and
that complainant was performing at the �high end of fully successful.�
FAD at 27.
With respect to complainant's allegations of discharge/constructive
discharge, the FAD noted that the complainant did not resign her position,
but rather never came back to work, and that she did not respond to
the agency's direction that she return to work. In addition, the FAD
concluded that complainant failed to show that her failure to return
to work resulted from intolerable working conditions at the Cleveland
Field Office. Thus, the FAD found that complainant could not prevail
on her constructive discharge claim. With respect to complainant's
discharge, the FAD pointed out that complainant was the only employee of
the Great Lakes Region Security Division to be placed on AWOL status.
In the agency's view, there was no comparator to show complainant was
discriminatorily treated, and thus that complainant could not establish
a prima facie case of disparate treatment (sex or race) discharge.
The FAD acknowledged that complainant could establish a prima facie case
of discharge for retaliation for her prior complaints. Nevertheless,
the FAD emphasized that the complainant was discharged for not showing
up for work.
On appeal, complainant reiterates her previous arguments, concerning
the hostile environment, low performance appraisal, disparate work
assignments, and discharge. Complainant contends that she made prima
facie cases involving all of her allegations, including the hostile work
environment and the performance appraisal matters. However, complainant
argues, on the hostile environment issue, that the rumors allegedly spread
by the Lead Agent that her job ratings were directly related to an alleged
sexual relationship she was having with the Cleveland Office Supervisor,
were alone sufficient to establish a claim of sexual harassment. On
the performance appraisal issue, complainant emphasizes that she was
the only agent to complete work assignments ordered by the Cleveland
Office Supervisor and the Chicago Field Office Supervisor in a timely
and complete fashion. She further reiterates that there was no criticism
lodged regarding the quality of her work product. On the work assignment
issue, complainant further argues that both the Lead Agent and Special
Agent B were not required to do the same volume of work or comply with
the changes effected by the Lead Agent, when he was acting supervisor.
On the constructive discharge issue, complainant argues that she was
ordered to return to the same hostile work environment, that resulted
in her pending EEO complaint. Finally, complainant argues that the
Security Assistant was not a similarly situated employee.
In reply, the agency requests that we affirm its FAD. The agency argues
that the record does not establish that complainant was subjected to a
hostile work environment and discriminated against complainant because
of her sex or race. In the agency's view, at most, the allegations
point to a situation where complainant did not like the personality and
management style of the Lead Special Agent, who would occasionally serve
as acting supervisor in the absence of the Cleveland Office Supervisor.
ANALYSIS AND FINDINGS
Work Assignments
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Prewitt v. USPS, 662 F.2d 292 (5th
Cir. 1981) (disability cases); 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 reprisal 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 may establish a prima facie case of discrimination by showing
that she is a member of a protected group and that she was treated less
favorably than other similarly situated employees outside her protected
group. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,
865 (6th Cir. 1975). Complainant may also set forth evidence of acts
from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco, 438 U.S. at 576.
The established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Complainant alleges that she was given less favorable work assignments
than male, non-white co-workers. We find that complainant has provided
insufficient evidence to establish a prima facie case of discrimination.
Our analysis follows.
The Cleveland Field Unit Supervisor stated that complainant never
complained to him about her assignments. Indeed, the Cleveland Field
Unit Supervisor indicated he gave complainant preferred assignments
because of her capabilities. According to the Cleveland Unit Supervisor,
one assignment, as a Computer Security Specialist, given to complainant
especially caused some of the other special agents to be upset that it
had not been given to them. Special Agent A's affidavit suggested that
complainant was perceived as receiving preferential assignments, because
of her rumored relationship with the Cleveland Field Unit Supervisor.
Indeed, Special Agent A suggested that the Lead Agent and Special Agent B
resented the assignments complainant received. Special Agent B indicated
that in his view complainant (and Special Agent A) received preferential
treatment from the Cleveland Field Unit's Supervisor. Even complainant
acknowledges that the Lead Agent accused her of getting all the good
assignments. November 20, 1995, Letter from Complainant's Attorney
to the Agency. The Security Assistant also indicated that there were
questions why complainant was getting preferential treatment (she was
sent to training classes and attended meetings that the other agents
felt they should have been sent to or offered the chance to attend)
from the Cleveland Field Unit Supervisor.
It appears complainant also argues that the Lead Special Agent and Special
Agent B did not have as many assignments as she or the other employees
in the office. None of the other employees, including the Cleveland
Field Unit Supervisor, in the office supported this view. Moreover,
the Lead Special Agent, GS-1801-13, was not in the same position as
complainant, GS-1801-12. As the Lead Special Agent, he had supervisory
responsibilities, when the Cleveland Field Unit Supervisor was absent
from the office. As the Lead Special Agent he did more oversight and
policy related duties than day-to-day work. The Cleveland Field Unit
Supervisor also indicated that the Lead Special Agent's work load
was dictated in part by a settlement of an EEO complaint which the
Lead Special Agent had filed against the agency.<3> Additionally,
the Lead Special Agent indicated his feeling that complainant had been
receiving more favorable assignments that he should have been getting,
since he was the Lead Special Agent and the most senior special agent.
The Lead Special Agent reported to the Chicago Field Office Manager,
whereas complainant reported to the Cleveland Field Unit Supervisor. <4>
As shall be discussed, infra, Special Agent B received a lower numerical
rating on his performance appraisal. Complainant's higher numerical
rating on her performance appraisal, as shall be discussed, infra,
could reasonably explain that the alleged difference in assignments
between complainant and Special Agent B was not unfairly or unlawfully
discriminatory.
Nevertheless, complainant did not identify which assignments she should
or should not have been given, or why she felt those assignments were
made because of her race or sex. Complainant does not allege that
Special Agent A, the other white female agent, received unfavorable
assignments. Indeed, Special Agent A, in her affidavit did not indicate
that she received unfavorable assignments because of her race or sex.
Whatever complainant's assignments, and to the extent the Lead Special
Agent may have been responsible for such assignments, complainant was
recognized for her work by the excellent performance evaluations and the
steady promotions she received. Although her last performance evaluation
was lower, i.e., fully satisfactory, this was a 90-day appraisal for the
period February 15, 1995, to May 15, 1995, and the Lead Special Agent
was not responsible for her assignments from the end of January until
she left work after the May 9, 1995, incident.
Hostile Work Environment
The harassment of an employee based on his/her race, color, sex,
national origin, age, disability, or religion is unlawful, if it is
sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985). To prevail on her harassment claims, however,
complainant must show that she was subjected to harassment because
of discriminatory factors with regard to an issue in her complaint.
In assessing allegations of harassment, the Commission examines factors
such as the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating and if it unreasonably
interferes with an employee's work performance. Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993). 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). 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.
To establish a prima facie case of hostile environment harassment,
complainant must show that: (1) she is a member of a statutorily protected
class; (2) she 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. For the reasons that follow,
we find that complainant did not provide sufficient evidence to justify
finding that she established a prima facie case.
Although complainant speaks of a �hostile atmosphere� in the Cleveland
office, she does not sufficiently support this allegation in terms of
being motivated by her race or sex. The rumor about complainant having an
affair with her supervisor by itself is not enough to sustain a charge of
hostile environment.<5> See Policy Guidance on Current Issues of Sexual
Harassment, No. N-915-050, at 14 (March 19, 1990) (�sexual flirtation
or innuendo, even vulgar language that is trivial or merely annoying,
would probably not establish a hostile environment�). Significantly,
there is insufficient evidence to show that the rumor unreasonably
interfered with complainant's job or engendered an intimidating, hostile,
or offensive work environment.
The record confirms that complainant did have some difficulties working
in the Cleveland office. Complainant's allegations of discrimination
are based largely upon complaints about the Lead Agent's conduct towards
her, when he was acting supervisor. However, Special Agent A indicated
in her affidavit that the Lead Agent �made everyone's life miserable.�
Special Agent A's Affidavit (Report of Investigation, Tab F1, at 1).
Special Agent A indicated that Special Agent B appeared miserable at times
but pretty much ignored the Lead Agent and would take leave or get out of
the office. Id. According to the Security Assistant, the Lead Special
Agent would be ill-natured when questioned, and could be difficult with
all three Special Agents. In the Security Assistant's view, Special
Agent B seemed to take the Lead Special Agent's orders the best, although
he would also be upset with the Lead Agent's instructions as well.
We also conclude, that to a large extent, the allegedly difficult
environment in which complainant operated in while the Lead Special
Agent was in charge was due to management style, and not because of
complainant's sex or color. Title VII of the Civil Rights Act is intended
to prohibit discrimination for specified reasons and is not designed to
guarantee that employees always receive fair and objective treatment from
their employers. Title VII does not protect an employee against adverse
treatment due simply to a supervisor's personality quirks or autocratic
attitude. See Schaulis v. CTB/McGraw Hill, Inc., 496 F. Supp. 666, 670
(N.D. Cal. 1980); Morita v. Southern Cal. Permanente Medical Group, 541
F.2d 217, 218-20 (9th Cir. 1976), cert. denied, 429 U.S. 1050 (1977).
More specifically, from Special Agent A's perspective, the Lead Special
Agent's �demeanor [was] very demanding and authoritarian� while the
Cleveland Field Unit's Supervisor was �more easy going and a lot easier
to get along with.� Id. On the other hand, Special Agent A indicated
that the Lead Special Agent was generally more lenient in his treatment
of Special Agent B, and things were not as strictly enforced on Special
Agent B, as they were enforced on complainant and Special Agent A.
However, Special Agent B indicated that complainant's problem with
the Lead Special Agent was that she questioned the Lead Special Agent's
authority and would not accept his directions, which resulted in conflict.
The Security Assistant further indicated that the Lead Special Agent did
not like to be questioned and wanted the people he was supervising to do
whatever he said immediately without question. The Cleveland Field Unit
Supervisor confirmed that the Lead Special Agent had a different style of
management than he did, with the Lead Special Agent being more directive.
The Cleveland Field Unit Supervisor additionally stated that all the
employees in the unit had spoken to him about their concerns with the
Lead Special Agent's management style. It was also the Chicago Field
Office Supervisor's observation that the source of the conflict was with
the Lead Special Agent's management style.
Complainant also argues that the Lead Special Agent repeatedly threatened
her with disciplinary action. Again, complainant fails to sufficiently
show that her race or sex was a motivating factor. In any event, there is
no indication that the Lead Special Agent ever initiated any disciplinary
action. Moreover, on or about January 30, 1995, complainant discussed
her concern about being fired by the Lead Special Agent with the Chicago
Field Office Manager, who assured complainant that the Lead Special Agent
had no authority to fire her. Nevertheless, the Chicago Field Office
Manager informally counseled complainant about being insubordinate.
In any event, complainant fails to provide sufficient support for the
claim that the Lead Special Agent treated her, as a result of her sex
or race, in an unfair and hostile manner. Specifically, complainant did
not describe the number of times the Lead Special Agent actually served
as acting supervisor, the dates of those occasions, the types of actions
on each of those occasions which complainant contends created a hostile
work environment because of her sex or race, in addition to the nexus
between the actions and her sex or race.
Although complainant alleges that the Lead Special Agent changed
established policies, she provides little evidence to prove this charge.
The Chicago Field Office Supervisor suggested that the Lead Special
Agent was essentially following the policies that he had established
and noted that daily airport inspections were required as a result of
heightened security concerns, as he had directed. At most, there were
several incidents from 1991 to January 1995, when complainant disagreed
with the Lead Special Agent's work-related orders. These allegations,
even if true, would not support a charge of hostile work environment based
on sex and/or race, when considering the totality of the circumstances.
Special Agent A also indicated that complainant had a �real friend� in
the Cleveland Field Unit Supervisor, who, because of her work ethic
and abilities, put a lot of trust and responsibility on complainant.
Special Agent A's Affidavit (Report of Investigation, Tab F1, at 3).
As head of the office in Cleveland, it would seem that the Cleveland Field
Unit Supervisor could and did act to provide a friendlier environment
in the office for complainant.
With respect to the May 9, 1995, incident, it is undisputed that the
incident emanated from complainant's circulation of a duty schedule
she prepared at the request of the Cleveland Field Unit Supervisor.<6>
Special Agent B was concerned that he did not have any input into the
schedule. Complainant came over to respond but before being able to
do so, Special Agent B yelled an obscenity at complainant and allegedly
struck her on the shoulder. Special Agent A interceded between the two
and then the Lead Agent, who had been in his own office, came out of
his office and removed Special Agent B from the scene. Special Agent
A removed complainant from the facility to await the Cleveland Field
Unit's Supervisor. Although this is a serious incident, complainant
has not established a nexus between the incident and her race and sex.
With regard to complainant's allegation of the denial of her
representative (Special Agent A and alternatively her husband) at the
meeting, relating to the May 9, 1995, incident, there is no indication
that the Cleveland Field Unit Supervisor and the Chicago Field Office
Manager were focusing on the incident as an EEO matter, as distinguished
from an alleged assault and battery. In the processing of an EEO
complaint, complainant is entitled to have representation of her choice
at all stages of the complaint, including at the EEO counseling stage.
However, the meeting involving the May 9, 1995, incident was not part
of the EEO complaint process. There was no
indication the denial of a representative at the meeting was motivated
by complainant's race and sex.
In sum, complainant does not allege, except for possibly the May 9, 1995,
incident, that any racial or sexual comments of a derogatory nature were
made to her. Although she speaks of a �hostile atmosphere�, she has not
sufficiently supported this assertion in terms of specific references,
establishing severe, patterned, and/or pervasive incidents, connected
to her race or sex. There is no question that the Cleveland Field Unit's
employees could work in better harmony with one another. It also appears
that many of complainant's allegations point to a situation where she did
not like the attitude and management style of the Lead Special Agent,
and the Lead Special Agent did not like the complainant's attitude as
well.<7> Indeed, there appears to be some friction between and among
all of the employees of the office. Nevertheless, the evidence in the
record does not sufficiently establish that the alleged harassment was
sufficiently severe to create an intimidating, hostile, or offensive
work environment on the bases of sex or color, as complainant alleges.
While the May 9, 1995, incident, concerning Special Agent B, was serious,
regardless of whether physical contact took place, complainant, too, was
accused of yelling at the Lead Special Agent and yelling and screaming
at Special Agent B. Any harassment against any individual should not
be tolerated.
Performance Appraisal
Complainant argues that she was retaliated against for complaining about
alleged discriminatory treatment when she was given what she considered to
be an unfairly low performance appraisal. More specifically, complainant
was given a fully successful rating for the period of February 15, 1995,
to May 15, 1995. Complainant's rating was for the three-month period,
as she had been recently promoted to the GS-12 position.
As discussed above, in general, claims alleging disparate treatment under
Title VII are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, supra. 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 reprisal cases).
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) she engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) she was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link. 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). "Generally, the Commission has held that nexus may
be established if events occurred within one year of each other." Patton
v. Department of the Navy, EEOC Request No. 05950124 (June 27, 1996).
The Cleveland Field Unit Supervisor knew complainant had met with
an EEO counselor on May 9, 1995. The performance rating was given
within such a period of time that retaliatory motive could be inferred.
Assuming arguendo that petitioner has set forth a prima facie case of
retaliation, as well as disparate treatment in terms of sex and race,
the agency has articulated a legitimate, nondiscriminatory reason for
the action at issue, i.e., that petitioner did not deserve higher than
the fully satisfactory performance rating. Petitioner has failed to show
the agency's articulated nondiscriminatory reason to be pretext.
Complainant cannot simply compare her previous ratings and assert that
her lower rating in 1995 was a result of reprisal. She has not cited
any evidence for her apparent claim that she deserved a higher rating
for this three month period. Complainant's performance rating had six
job elements for which she was rated. There was considerable commentary
in the performance appraisal which complainant could have responded to,
to the extent she felt there were errors. There is no evidence that the
evaluation was accomplished in a discriminatory manner, nor is there any
evidence that her quality of work during this period of time warranted
a higher evaluation.
In addition, we note that complainant was evaluated in terms of the
standards for her higher grade.
Certainly, more is expected of an individual performing at the GS-12 level
than at, for example, the GS-11 level or GS-09 level. Complainant's
higher appraisal ratings were at the GS-11 (1994) and GS-09 (1993) level.
We also note that complainant, despite being the least senior special
agent, received the highest numerical rating of the GS-1801-12 Special
Agents working at the Cleveland Field Unit for the appraisal period
ending in the spring of 1995. She received a rating of 1.60 (1.0-1.69
for Fully Successful). Special Agent A received a rating of 1.55.
Special Agent B received a rating of 1.40.
Finally, there is no indication that the Lead Special Agent had any part
in the lower performance appraisal. Indeed, it appears that he had no
supervisory authority over complainant in the period February 15 to May
15, 1995.
Termination
We note that complainant did not resign from the agency, but was fired
for AWOL a year after the incident of May 9, 1995. We therefore find
that complainant was not constructively discharged, but was nevertheless
discharged.
In addressing complainant's discharge, whether it be for disparate
treatment or retaliation, the agency enunciated a legitimate
nondiscriminatory reason for discharging complainant, i.e., that
complainant was discharged for not showing up for work. Complainant has
failed to show pretext.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the
official agency head or department head, identifying that person by his
or her full name and official title. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 27, 2001
Date
1 The Cleveland Field Unit is an operating unit of the Chicago Field
Office. The Cleveland Field Unit's Supervisor and Lead Special Agent
reported directly to the Chicago Field Office Manager. All other
personnel reported to the Cleveland Field Unit's Supervisor.
2 At the time of the complaint, the Cleveland Field Office was staffed by
a Supervisor, a Lead Agent, three special agents (including complainant),
and a security assistant.
3 As part of an October 17, 1992, settlement agreement of several EEO
complaints against the agency, the Lead Special Agent was awarded his
position. Based upon his seniority and grade he was supposed to be
the Acting Supervisor in all situations when the Cleveland Field Unit
Supervisor was not in the office.
4 In order to be considered similarly situated, the persons with whom the
complainant is comparing herself/himself must be similar in substantially
all aspects, so that it would be expected that they would be treated in
the same manner. Murray v. Thistledown Racing Club, Inc., 770 F.2d 63,
68 (6th Cir. 1985); Majahad v. Department of Labor, 915 F. Supp. 499
(D.C. MA 1996)(in order to establish disparate treatment, comparators
to the probationary complainant were other probationary employees).
Further, evidence of discriminatory intent generally relates to the intent
(or absence of) of the supervisor(s) who recommended and/or took the
complained of action. Therefore, in making an appropriate comparison,
the comparator must have been supervised by the same individual as
the complainant. Alexander v. Gardner-Denver Co., 519 F.2d 503 (10th
Cir. 1975)(action of a supervisor other than the one who supervised the
plaintiff was insufficient evidence of discrimination).
5There is no evidence that the rumor resulted in any hostile impact to
complainant, although there are indications there was resentment at times
by different employees about complainant's job assignments. No witness
supported complainant's allegation that the Lead Special Agent started
the rumor. Indeed, the Lead Special Agent denied starting the rumor.
However, no one disputed
that the rumor did circulate. Neither the Cleveland Field Unit Supervisor
nor the complainant heard about the rumor until February 1995. The record
is not clear what, if anything, the Cleveland Field Unit Supervisor or
the complainant did about the rumor.
6 The evidence as to whether there was any physical contact is
conflicting. In any event, there is no evidence of physical injury,
requiring treatment. The record indicates that the U.S. Department of
Labor's Office of Workers' Compensation Programs has found that the
evidence was not sufficient to prove that complainant was struck by
her coworker. Report of Investigation, Tab F7. Moreover, physical
contact of the shoulder under the circumstances in question does not
suggest that sex was a motivating factor.
7 The Lead Special Agent indicated that he felt the complainant's
negative attitude towards him was race based.