01992329
06-09-1999
Essie Gilchrist, Appellant, v. Aida Alvarez, Administrator, Small Business Administration,) Agency.
Essie Gilchrist, )
Appellant, )
)
v. ) Appeal No. 01992329
) Agency No. 01-97-586
Aida Alvarez, )
Administrator, )
Small Business Administration,)
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal with this Commission from a
final agency decision concerning her complaint of unlawful employment
discrimination on the basis of race (African-American), color (Black),
age (date of birth: 11/22/50), and reprisal for her prior EEO activity,
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. The appeal is
accepted in accordance with EEOC Order No. 960, as amended. For the
following reasons, the agency's decision is AFFIRMED AS MODIFIED.
ISSUES PRESENTED
The issues on appeal are whether appellant has proven by a
preponderance of the evidence that she was subjected to unlawful
employment discrimination or retaliation on the above-cited bases when:
(1) she was not relocated for 45 days after being approved for voluntary
reassignment to the Sacramento District Office; (2) her request for annual
and sick leave was denied; (3) she was issued a letter of reprimand;
and (4) she was harassed by being asked for clarification of her sick
leave request, issued a letter of reprimand, and assigned menial tasks
prior to her reassignment.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as a GS-13 Procurement Analyst for the Small Business Administration
(SBA), stationed at McClelland Air Force Base in Sacramento,
California. In the early 1990s, several years before the events here
at issue, appellant had complained to a manager regarding alleged
harassment by the District Director of the SBA Sacramento District
Office. The manager notified an EEO official, who then interviewed
the District Director regarding appellant's allegations, but no further
action was taken. The underlying events involved the District Director
allegedly objecting to a religious symbol on appellant's business card,
and thereafter harassing appellant by disturbing papers arranged on a
table, and telling others she was going �to get� appellant.
In 1996, the base was closed, and appellant and three of her co-workers
were reassigned to the Minority Enterprise Development Office (MEDO) in
San Francisco. All four employees thereafter applied for reassignment
to the agency's Sacramento District Office so that they could remain
in Sacramento rather than having to commute to San Francisco. All four
employees were offered reassignment to the Sacramento District Office on
the same date. Appellant's three co-workers accepted this reassignment
offer on September 15, 1996, and reported for duty shortly thereafter.
However, appellant did not accept the reassignment offer until September
19, 1996, and was not permitted to begin working at the Sacramento
District Office until November 12, 1996. In the interim, appellant
remained assigned to MEDO, where she alleges she was given menial duties
while awaiting her relocation.
Due to emotional distress she experienced from witnessing an accident on
an office building escalator, appellant requested use of accrued leave
commencing October 16, 1996. Appellant submitted medical documentation,
but she contends that her MEDO supervisor repeatedly sought clarification
thereof. After she exhausted her accrued leave, appellant sought to take
advanced sick leave or leave without pay. Appellant contends that she
was instead recorded as absent without leave ("AWOL") for October 29
and 30, 1996. On November 4, 1996, appellant was issued a letter of
reprimand from her MEDO supervisor for use of abusive and offensive
language during telephone conversations with a personnel officer and
appellant's supervisor on October 31, 1996, regarding the leave issue.
Believing she was a victim of discrimination and retaliation, appellant
sought EEO counseling and, subsequently, on January 27, 1997, filed
a formal complaint raising the issues presented above. Following an
investigation, the agency issued a final decision on December 29, 1998,
finding against appellant on each of her claims. The agency concluded
that although appellant had established a prima facie case as to each
of her claims, management had proffered legitimate non-discriminatory
reasons for the actions at issue, which appellant had failed to refute.
Specifically, the agency found: (1) the delay in appellant's relocation
was due to her delay in accepting the reassignment; (2) appellant was
neither denied leave nor intentionally recorded as AWOL; (3) the letter of
reprimand was appropriate; and (4) management's request for clarification
of appellant's medical status was appropriate, and appellant was given the
same tasks to perform as other employees while awaiting her relocation.
CONTENTIONS ON APPEAL
Appellant has submitted two new documents for consideration on appeal,
as follows:
(1) an unsigned memorandum dated January 27, 1999, from a co-worker
("CW1") (Black/Hispanic) of the MEDO office, asserting that (a)
by his observation, appellant's �primary functions were clerical
duties� while she was awaiting reassignment; (b) the MEDO supervisor
confirmed to him that two white co-workers made disrespectful comments
to the supervisor but were not reprimanded; (c) the MEDO supervisor
�continually bad-mouthed� appellant and treated her �as if she were a
child�; (d) the MEDO supervisor �has a history of treating blacks in
a condescending and patronizing manner,� and has treated CW1 in this
manner; and (e) the MEDO supervisor �is hostile toward blacks,� and
�[s]he has mimicked black culture, black people, and she attacks the
black-owned business applications which we process . . .�; and
(2) a signed letter from a co-worker ("CW2") (Caucasian) dated January
27, 1999, stating that all of the employees performed clerical tasks,
but that after CW2 was transferred from the office, �there was only
[the MEDO supervisor, appellant, and CW1].�
Appellant also asserts that the agency failed to credit the affidavit of
another co-worker ("CW3"), who stated that the MEDO supervisor and the
Sacramento District Director jointly determined appellant's relocation
date, and that the MEDO supervisor wanted to retain appellant in San
Francisco to perform work that needed to be done. See Investigative File
("IF") at Exhibit 36.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination or retaliation,
the allocation of burdens and order of presentation of proof in a Title
VII case is a three-step process. McDonnell-Douglas Corp. v. Green,
411 U.S. 792 (1973).
Appellant has the initial burden of establishing a prima facie case of
discrimination or retaliation. A prima facie case of discrimination
based on race, color, or age is established where appellant has produced
sufficient evidence to show that: (1) she is a member of a protected
class; (2) she was subjected to an adverse employment action; and (3)
similarly situated employees outside her protected class were treated
more favorably in like circumstances. A prima facie case of retaliation
is established where appellant has produced sufficient evidence to show
that: (1) she engaged in protected activity; (2) the agency was aware
of her participation in the protected activity; (3) she was subjected
to an adverse employment action; and (4) a nexus exists between
the protected activity and the agency's adverse action. Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318,
324 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976); Van Druff
v. Department of Defense, EEOC Appeal No. 01962398 (February 1, 1999).
If the appellant 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, 254 (1981).
If the agency articulates a reason for its actions, the burden
of production then shifts back to appellant to establish that the
agency's proffered explanation is pretextual, and that the real reason is
discrimination or retaliation. Throughout, appellant retains the burden
of proof to establish discrimination or retaliation by a preponderance
of the evidence. It is not sufficient �to disbelieve the employer;
the fact finder must believe the plaintiff's explanation of intentional
discrimination.� St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993) (emphasis in original).
Applying these standards to the instant case, we find based on a careful
review of the record that the agency properly denied appellant's claims
for the following reasons:
Issue 1: Delay in Reassignment
Appellant contends that in retaliation for her prior EEO inquiry, the
District Director and her MEDO supervisor delayed her relocation for
discriminatory and retaliatory reasons.
Appellant has stated a prima facie case of disparate treatment based on
race, color, age, and reprisal, since two of the three co-workers who
commenced their reassignment earlier than appellant were in different
protected classes and had no record of prior EEO activity.<1>
The MEDO supervisor denied any role in determining the date of appellant's
relocation, and denied ever discussing appellant's relocation with
the District Director except for an incidental telephone conversation
regarding appellant's personnel file. See IF at Exhibit 31. The District
Director stated in her affidavit that she determined appellant's
relocation date in conjunction with the agency personnel office, but
denied that appellant's prior EEO complaint affected her decisions in
this matter. She attributed the reassignment delay to: (1) appellant's
negotiation for a higher grade prior to accepting the reassignment; and
(2) a lack of office space and equipment for the new personnel. See IF
at Exhibit 32. The District Director stated that appellant's co-workers
had unexpectedly reported to the Sacramento office before the District
Director had received any paperwork concerning their reassignment, and
she was instructed by personnel to place them in positions beginning
the next pay period. Id. However, with respect to both appellant and
another new staff member, the District Director set a November start date
because she was awaiting approval for, and installation of, additional
office space and equipment. Id.
In order to show pretext, appellant presents the affidavit of CW3,
IF at Exhibit 36, which asserts that the MEDO supervisor and District
Director jointly determined appellant's relocation date, and that the
MEDO supervisor wanted to retain appellant "to accomplish work that
needed to be done." However, the affidavit provides no indication
that CW3 bases these assertions on any first-hand knowledge, i.e.,
a description of written or verbal communications to which she was
a witness. Moreover, even accepting CW3's assertions as true, the
affidavit is insufficient to create an inference that the supervisors
in question acted for discriminatory or retaliatory reasons. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
The memorandum by CW1 submitted on appeal also does not affect this
result. Although he alleges in general terms that the MEDO supervisor
treated Black employees unequally, CW1 provides no specific examples of
what the MEDO supervisor allegedly said or did, to whom, when, and so on.
In and of itself, this memorandum is insufficient to satisfy appellant's
burden to prove by a preponderance of the evidence that management's
proffered reason for the delay in relocating appellant is pretextual,
and that the real reason was discrimination or retaliation. Hicks,
Issue 2: Annual and Sick Leave
Appellant contends that her absence on October 29 and 30, 1996, was
improperly recorded as �AWOL,� rather than �leave without pay� as other
employees received in like circumstances. Management denies having placed
appellant on AWOL status for the dates in question. Management asserts
that the local time and attendance records listed the absences as �leave
without pay,� but that the absences may have been mistakenly listed as
AWOL when the time and attendance records were input at headquarters in
Washington, D.C. Management asserts that when the error was discovered
the MEDO supervisor spent several months trying to correct it. See IF
at Exhibit 32. In any event, the record establishes that appellant's
leave record prepared by MEDO did in fact list her absences on the dates
in question as �leave without pay.� See IF at Exhibit 47. Accordingly,
even assuming appellant has established a prima facie case of disparate
treatment on this claim, appellant has not proven by a preponderance of
the evidence that the alleged AWOL record resulted from discrimination
or retaliation, as opposed to a recordkeeping mistake at headquarters,
as management claims.
Issue 3: Letter of Reprimand
Appellant contends that she was improperly issued a letter of reprimand
for disrespectful conduct and use of abusive language. On appeal,
appellant contends that two Caucasian, older employees, with no
known prior EEO activity, engaged in equivalent behavior but were not
disciplined. As noted above, CW1 states that the MEDO supervisor stated
to him that these two other employees made disrespectful comments to her.
The agency found, and we agree, that appellant has demonstrated a prima
facie case of discriminatory or retaliatory discipline by establishing
that persons outside the protected class were not subjected to discipline
for disrespectful conduct and abusive language toward the same supervisor.
In response, management articulates that appellant had a history of
misconduct which legitimately warranted her reprimand. The letter of
reprimand at issue cited appellant for a series of alleged instances
of misconduct over an extended period of time, including: (1) yelling
at and hanging up on the MEDO supervisor and a personnel officer during
telephone conversations about leave; (2) stating to the MEDO supervisor,
�if I never have to see your face again in this lifetime, that would make
me happy�; and (3) failing to respond to the MEDO supervisor's requests
for documentation regarding appellant's extended absence and request
for advanced sick leave. See IF at Exhibit 48. In addition, another
instance of alleged insubordinate behavior by appellant had previously
been documented, see IF at Exhibit 41, and appellant had previously been
verbally counseled regarding a variety of matters. See IF at Exhibit 46
at 146. The record contains no evidence that appellant's two co-workers,
who were not disciplined for their disrespectful comments to the MEDO
supervisor, had an equivalent record of prior misconduct. Moreover, the
record establishes that a personnel officer advised the MEDO supervisor
to issue a reprimand letter on this matter. See IF at Exhibit 35.
This undermines appellant's claim that the MEDO supervisor's decision
to discipline appellant was motivated by retaliatory or discriminatory
animus.
Accordingly, appellant has failed to establish by a preponderance of the
evidence that the agency's proffered legitimate reasons for the letter
of reprimand are pretextual, and that the real motive was discriminatory
or retaliatory. Therefore, the agency properly denied this claim.
Issue 4: Harassment
Appellant contends she was harassed by being asked for clarification
of her sick leave request, being given the aforementioned letter of
reprimand regarding communications with her supervisor about sick leave,
and being given menial duties to perform while awaiting reassignment.
The agency appears to have analyzed this claim as one of disparate
treatment rather than harassment.<2> Since appellant clearly raised
the claim as one of harassment, the agency should have analyzed it as
such, in addition to separately analyzing the claim as one of disparate
treatment if also applicable. See Moore v. United States Postal Service,
EEOC Appeal No. 01950134 (April 17, 1997).
Analyzing issue 4 in the first instance as a claim of disparate
treatment based on race, color, age, or reprisal, we find, reaching
the merits of the claim, that appellant failed to establish a prima
facie case of discrimination or retaliation regarding sick leave
matters or her assignment to clerical duties.<3> Appellant has not
rebutted the affidavit from a personnel officer stating that management
followed uniformly-applied agency procedures in dealing with appellant
relative to her sick leave request. See IF at Exhibit 35. Appellant has
provided no contrary evidence regarding similarly-situated employees of
a different race, color, age, or with no history of prior EEO activity,
who were treated differently with respect to equivalent leave requests.
See Kennedy v. United States Postal Service, EEOC Request No. 05970745
(April 2, 1999). Likewise, although appellant has submitted witness
statements corroborating her allegation that she was assigned clerical
tasks, she has not produced any evidence to contradict the MEDO
supervisor's affidavit stating that all similarly situated employees were
assigned the same duties, and that appellant refused to perform financial
analysis tasks because of her temporary status in the MEDO office.
See IF at Exhibit 31 at 7.
Alternatively, analyzing issue 4 as a claim of harassment based on race,
color, age, or reprisal, appellant must demonstrate that: (1) she was
subjected to harassment that was sufficiently severe or pervasive to
alter the terms or conditions of employment and create an abusive or
hostile environment; and (2) the harassment was based on her membership
in a protected class, i.e., based on an impermissible factor such as her
race, color, age, or reprisal. Cromar v. Department of Justice, EEOC
Appeal No. 01951366 (January 23, 1998). See also Cobb v. Department
of the Treasury, EEOC Request No. 0597007 (March 13, 1997); Miller
v. U.S. Postal Service, EEOC Request No. 05941016 (June 2, 1995).
While appellant's allegations regarding sick leave, the letter of
reprimand, and assignment to clerical duties, viewed in the light most
favorable to appellant, state a claim for harassment, see Cervantes
v. United States Postal Service, EEOC Request No. 05930303 (November 12,
1993), we find that on the merits, the evidence precludes appellant from
establishing a prima facie case of harassment. As explained above,
the evidence demonstrates that appellant was not treated differently
than similarly-situated employees with respect to leave time or clerical
duties, and that her letter of reprimand was issued in accordance with
personnel office policies. Accordingly, the evidence does not demonstrate
that appellant was subjected to adverse treatment or personnel actions
which were sufficiently severe or pervasive so as to create an abusive
or hostile environment, and she therefore cannot establish a prima facie
case of harassment based on race, color, age, or reprisal.
For these reasons, the agency's ruling on issue 4 is affirmed as modified
herein.
CONCLUSION
Accordingly, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not addressed in this decision, the agency's the final agency decision
is AFFIRMED AS MODIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 9, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant's age discrimination claim is predicated on the theory that
two older co-workers were afforded favorable treatment because they were
close to retirement age. See 29 C.F.R. �1625.2(a).
2Moreover, the agency improperly conflated procedural and merits bases
for disposing of the instant claim, relying alternately on the standard
for failure to state a claim as well as the tripartite McDonnell-Douglas
method of proof utilized in determining whether a complainant has met
her burden of proof on the merits of a claim. As with any claim, the
agency should have first determined whether a claim is stated, and if so,
then proceeded to analyze the merits.
3As previously discussed with respect to issue 3, appellant established
a prima facie case of discrimination and retaliation as to issuance of
the letter of reprimand, but failed to meet her burden of proof on the
merits of that claim.