01972736
02-04-2000
Jane Marte-Prindeville, Complainant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.
Jane Marte-Prindeville v. United States Information Agency
01972736
February 4, 2000
Jane Marte-Prindeville, )
Complainant, )
) Appeal No. 01972736
v. ) Agency No. CR-96-02
)
Joseph D. Duffey, )
Director, )
United States Information Agency, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of sex (female) and reprisal (providing assistance to another on
EEO matters), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges she was
discriminated against when on June 28, 1995, she was notified of the
curtailment of her assignment as Team Leader in the Information Bureau
(I Bureau), and of her reassignment to another position in the agency
effective July 31, 1995. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
During the relevant time, complainant was employed as a Foreign Service
(FS) Officer, and worked as a Team Leader of the Democracy and Human
Rights Team, Office of Thematic Programs, I Bureau. At the time relative
to the complaint, complainant was one of 21 Team Leaders in the I Bureau.
Affidavits in the record reveal that FS Officers are assigned to a normal
tour of duty of 2-3 years. However, should an FS Officer wish to stay in a
position longer than 3 years, he or she can request an exception. At the
time relative to this complaint, complainant had worked in the I Bureau
and her predecessor position, the P Bureau, for almost 3 years total.
In October 1994, the I Bureau formed a Design Team, which was organized
for the purpose of studying recurring problems in the office and
making suggestions. Complainant was the Leader of the Design Team.
In May 1995, the Design Team presented its recommendations to the
Steering Committee. Among their suggestions was the reorganization of
the Office of Information Resources.
Contained in the record is a memorandum dated June 14, 1995, from the
Associate Director for Information (male) to the Chief of Foreign Service
Officer Personnel (male). Therein, the Associate Director requested the
transfer of complainant. As reasons, he cited the fact that complainant
had been in her current and predecessor position for nearly three years,
and that certain mitigating circumstances warranted her transfer.
Specifically, he stated that the structural changes recommended by the
Design Team primarily affected GS employees, and that "some semblance of
balance" would be achieved by the transfer of an additional FS officer
from team leadership." Furthermore, the Director stated that, complainant
"has resisted adopting the intra-team culture that is necessary for the
success of the Bureau."
Complainant averred that on June 19, 1995, her supervisor (male) told her
that her position was being rotated due to the length of time she had
worked for the I and P Bureaus. On that date, the Associate Director
issued a memorandum based upon the recommendations of the Design Team,
which announced a number of vacancies, including complainant's position.
There were four other Team Leaders affected by the changes detailed
in the memorandum, all of whom were male GS officers. The memorandum
stated that complainant's position was to be filled by a lateral
reassignment by August 1, 1995. Although complainant did not lose
grade or pay, she believed that the loss of the Team Leader position
would irrevocably damage her FS career. Complainant believed that she
was being discriminated against of the basis of sex due to her success
on the Democracy and Human Rights Team, as well as the Design Team.
She averred that senior male management, such as the Associate Director,
were threatened by her successes, but did not include any specific
examples or statements to that effect.
Complainant stated in her affidavit that of the 21 Team Leaders, only
five were affected, and that she was the only woman. Moreover, she
averred that all the other affected GS Team Leaders were permitted to
stay within the I Bureau, whereas she was transferred to another position
at the express request of the Associate Director. The individual who
replaced complainant was a white male FS officer.
Complainant also alleged that she was being retaliated against for the
assistance she provided a co-worker on an EEO matter. According to her
affidavit, in May 1995, she spoke with an individual from the I Bureau
Front Office about the co-worker and warned that the agency's actions
against the co-worker may lead to a retaliation complaint. She stated
that the timing of her subsequent curtailment of her assignment and
transfer were more than a coincidence.
On October 10, 1995, complainant filed the instant complaint. At the
conclusion of the investigation, complainant was sent the investigative
file and right to request a hearing before an EEOC administrative judge
(AJ). Complainant requested that the agency issue a final decision.
According to the agency's appeal brief, on February 11, 1997, complainant
then asked the agency to answer a list of interrogatories.<2> On
February 13, 1997, the agency returned the interrogatories, and denied
complainant's request, stating that since discovery had not been commenced
by an administrative judge, they were returning the requests.
On January 15, 1997, the agency issued a final decision finding no
discrimination. In its decision, the agency found that complainant had
established a prima facie case of sex discrimination in that she showed
that she was the only female who was rotated or reassigned during this
time, and that she was not permitted to apply for other vacancies within
the I Bureau, whereas affected men were so permitted. With respect to
complainant's reprisal allegation, the agency found that complainant
failed to establish a prima facie case of discrimination in that she
failed to show that any of the management officials were aware that she
had assisted an individual with her EEO complaint.
The agency also found that it had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Associate
Director averred that "[t]he I Bureau was premised on three factors:(1)
that there would be an equal number of FS and GS Team Leaders; (2)
that there would be a rotation of jobs between FS and GS employees, and
(3) that rotations would take place after working in a position for
2-3 years." According to the Associate Director, in order to rotate
the Team Leaders, there needed to be a staggering of the rotations, and
that complainant was among the first group of rotations. Furthermore,
he averred that based upon the recommendations of the Design Team, most
of the affected personnel were GS employees. As such, he stated that
there needed to be a rotated FS Team Leader, and complainant was the
proper choice due to the fact that she already had three years tenure,
including her previous position. As support for this contention,
he stated that the normal tour of duty for FS domestic assignments is
2-3 years. He recalled that complainants' replacement, who was also a
FS officer, was selected based upon the recommendation of the Democracy
and Human Rights Team.
The Associate Director denied that he discriminated against complainant
on the basis of sex or reprisal. He averred that prior to complainant's
transfer, four of the six Team Leaders in the Thematic and Geographic
Liaison Offices were women. Following complainant's curtailment and when
the reassignments were made, four of the six FS Team Leaders were women.
The Chief, Foreign Service Personnel Division averred that FS personnel
are routinely reassigned without a loss of pay or grade. Also, although
complainant expected that she would be in the Team Leader position until
September of 1996, there was no guarantee of such.
The Associate Deputy Director also stated that the original term length
for FS Officer is 2-3 years, and that GS employees were to be rotated
in and out of Team Leader positions on a regular basis. Additionally,
although complainant was adept at developing her team, the team also
developed a "kind of wall around itself to the detriment of cross
team cooperation." The Associate Deputy Director noted that although
complainant contributed to the success of the Design Team, it was "often
at the expense of other people's patience and accomplished often by an
overbearing imposition of her own points of view and intolerance by her
of dissenting views of reasoned opposing arguments."
Complainant's supervisor averred that complainant, as an FS officer,
was coming up for rotation or retirement, and therefore her position
was the most likely for rotation due to the need for balance among GS
and FS Team Leaders.
In support of her appeal, complainant states that the agency's failure
to supply answers to her interrogatories rendered her unable to prove
pretext. She argues that she was the only FS officer rotated, which
negates the agency's reliance on the balance theory. Furthermore,
she argues that other FS and GS personnel have been given extensions to
their assignments, which proves that there could be no problem with the
rotation schedule. Complainant argues that her performance appraisal
shows that she was performing at a high level, and cites the testimony of
two of her prior subordinates who state that complainant was a successful
team leader.
In response to complainant's appeal, the agency asks that we affirm
the FAD. Furthermore, they argue that when complainant requested
that the agency issue a final decision, her representative conceded
that, "[complainant] had provided more than enough information in her
comments on the ROI to inform your decision in her best interests,"
That statement, coupled by her request for an immediate final decision by
the agency, shows that she believed the file was complete. As such, the
agency argued that complainant's request for discovery should be denied.
Furthermore, the agency argues that complainant admitted that female
FS officers have been granted extensions to their assignments, thereby
substantiating the agency's nondiscriminatory reasons for its actions.
As a preliminary matter, we find that the agency's argument that
complainant had the opportunity to request a hearing if she believed that
there was insufficient evidence in the record is persuasive. Furthermore,
we find that the submission of interrogatories, after the investigation
was completed, and following the issuance of a final decision, came too
late for the agency to properly consider.
Turning to the merits of complainant's complaint, and after a careful
review of the record, based on McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the Commission agrees with the agency that
complainant failed to prove, by a preponderance of the evidence, that
the agency's articulated reasons for its actions were pretext for sex
or reprisal discrimination. Although we do find some evidence in the
record which may contradict the agency's reasons for its actions, that
being, documentary and witness testimony that revealed their belief that
complainant worked well with other teams, the evidence is insufficient
to prove, by a preponderance of the evidence, that she was discriminated
against based on her sex or reprisal.
In St. Mary's Honor Center v. Hicks, 900 U.S. 502 (1993), the U.S. Supreme
court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination." Id. at
519.
After a careful review of the record, we find that complainant was
selected for curtailment, in part because her time in the position
was up, and in part due to subjective reasons. However, complainant
has failed to persuade us that the decision to curtail her assignment
and subsequent transfer were motivated because of her sex. We find
insufficient evidence in the record, testimonial or documentary,
indicating a discriminatory animus on the part of the Associate Director.
We also note that complainant has presented insufficient evidence that
management was aware that she had engaged in prior EEO activity.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 4, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The Interrogatories themselves are not dated.