01a46123
08-16-2005
Kathleen J. Givens, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Kathleen J. Givens v. Department of the Army
01A46123
August 16, 2005
.
Kathleen J. Givens,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A46123
Agency No. ARMCCOY03MAR018
Hearing No.
110-2004-00171x-TGH
DECISION
Complainant filed a formal EEO complaint on April 2, 2003, in which she
claimed that she had been subjected to harassment by her supervisor in
reprisal for her previous EEO activity under the Rehabilitation Act.
The specific incidents cited by complainant are as follows:
1. On September 13, 2002, her supervisor lost total physical and emotional
control. He became so enraged at her that he had complainant backed up
against a partition screaming at her at the top of his lungs, violently
ripping a report out of her hands, and demanding that complainant leave
the premises immediately and not return until the following Tuesday.
2. Her supervisor started micro-managing her work and requesting she
give complete details of work habits, when no one else in the office is
put through this type of situation.
3. Her supervisor has placed greater demands on her as far as workload
and her workload is much heavier than others in the section.
4. Her supervisor yelled at her on several occasions in front of
coworkers.
5. She received a performance rating of �Highly Successful� instead of
�Exceptional� on her most recent performance appraisal. She was never
counseled on her performance, given assistance from her supervisor to
improve her job performance, nor given a reasonable period to bring up
her alleged performance issues.
6. She was asked to change her performance objectives for her most
recent rating period (November 1, 2002 - October 31, 2003). She was
told to develop her performance objectives in �measurable� terms.
No other employee was required to do this.
7. Her supervisor prevented her from being promoted. Her supervisor
created a scene in the G8 Department, where she had applied for two
positions, by accusing her of causing trouble.
8. Her supervisor turned her coworkers against her in an effort to make
her work environment unbearably hostile.
9. A key witness to the retaliation against her was reassigned to be
under the supervision of her supervisor so he could put pressure on her
concerning her testimony.
10. She requested a new supervisor on January 23, 2003, and was placed
under the supervision of a different agency official. This official works
for her former supervisor and their close relationship is a conflict of
interest. Her former supervisor is still involved in her day-to-day work.
The agency investigated the complaint through a fact finding conference
and thereafter referred the matter to an Administrative Judge (AJ),
pursuant to complainant's request for a hearing. Without holding a
hearing, the AJ issued a decision finding no discrimination. The AJ
observed with regard to the confrontation between complainant and her
supervisor referenced in claim (1) that becoming angry at an employee
for failing to follow an order from her supervisor when she was already
granted the privilege to leave early from work to attend to a personal
matter does not raise an inference of retaliation. With respect to
claims (2) and (3), the AJ stated that the fact that a manager tries
to keep abreast of employee work habits does not raise an inference
of retaliation. The AJ also found that no inference of retaliation
was raised by the fact that complainant was required to complete 24
hour suspenses. As for complainant's performance rating of �Highly
Successful�, the AJ noted that complainant's supervisor issued a
memorandum stating several things about complainant's performance that
should not occur with an experienced Budget Analyst. The AJ found that
complainant failed to provide any evidence contradicting the memorandum
or the testimony of an agency official who indicated that complainant's
work did not justify an �Exceptional� rating. With regard to management
requesting that complainant change her performance objectives into more
objective terms, the AJ observed that complainant did not receive any
adverse treatment for failing to comply with the request. The AJ further
stated that the fact that management desired to evaluate complainant
more accurately cannot be deemed adverse treatment.
With regard to claim (7), the AJ noted that complainant acknowledged
that she did not know whether her supervisor was joking. Moreover, the
AJ observed that there is no evidence that shows management in the G8
Department overheard the supervisor's comment or that the comment affected
complainant's chances for promotion. As for complainant's supervisor
allegedly turning her coworkers against her, the AJ noted that complainant
had problems with her coworkers prior to her supervisor's arrival.
With respect to claim (9), the AJ observed that complainant overlooked
the fact that the official at issue previously worked for her supervisor
and was only transferred to other areas on temporary details. Finally,
with regard to claim (10), the AJ stated that complainant does not have a
right to determine who evaluates her. According to the AJ, complainant
did not provide any evidence to contradict the agency's assertion that
the official it chose to become complainant's new supervisor was selected
because she had experience supervising civilians and the nature of her
work nearly matched complainant's work. The AJ found that the alleged
incidents, when viewed collectively, fail to establish the requisite
level of harm needed to establish reprisal.
The agency issued a decision on August 17, 2004, implementing the AJ's
decision.
On appeal, complainant contends that in the first rating period after
she filed her prior EEO complaint, she received a lower performance
rating than any of her previous ratings. Complainant states that she
did not receive any warnings that her performance was slipping and her
mid-year review did not indicate any areas that needed improvement.
Complainant argues that her supervisor offered no documentary evidence
to support her performance review. Complainant maintains that her
supervisor's conduct and harassment began only after she filed her
initial EEO complaint. According to complainant, although she has a
new supervisor, her former supervisor still assigns her tasks directly.
In response, the agency asserts that the project that complainant's
supervisor wanted complainant to perform on September 13, 2002 would have
taken her no more than 25 minutes to complete. The agency states that the
supervisor's actions that day were based on this suspense that needed to
get done. As for the claim that the supervisor has yelled at complainant
on several occasions in front of her coworkers, the agency states that
the supervisor's voice elevates, but he does not consider it yelling.
The agency denied that complainant was required to provide her supervisor
with complete details of her work habits. Rather, the supervisor stated
that each of his employees was required to inform him in the morning of
what they would be working on that day. The supervisor stated that he did
not believe complainant's workload was heavier than that of anyone else
in the section, but was based on the nature of complainant's work and her
level of efficiency. With regard to complainant's performance rating, the
supervisor stated that he requested from complainant her accomplishments
for the rating period and based his justification for the rating on her
input concerning her objectives and accomplishments. The supervisor
further stated that he listed in a memorandum several items that he
believed should not have occurred with an experienced Budget Analyst.
Additionally, the Chief Information Officer stated that complainant did
nothing above and beyond to warrant a rating of �Exceptional�. As for
requesting that complainant's performance objectives be changed, the
agency states that complainant was not reprimanded or counseled because
of her refusal to cooperate in changing her performance objectives.
With regard to complainant not being promoted to a position in the
G8 Department, the agency asserts that the supervisor did not speak to
anyone in the G8 Department concerning complainant obtaining a job there.
The agency further asserts that complainant merely speculates that the
alleged remark was overheard by management officials and impacted her
chances of being selected. As for claim (8), the agency notes that the
supervisor stated that he has never discussed complainant's performance or
personal situation with a coworker in a negative connotation. A coworker
stated that complainant turned her coworkers against her by yelling
and screaming at people and the supervisor had nothing to do with how
they felt about her. The agency maintains that complainant's demeanor
in interacting with her coworkers has resulted in the nature in which
coworkers interact with her. With respect to claim (9), the agency
states that there was no testimony that the supervisor spoke with the
agency official in an attempt to influence her testimony. The agency
asserts that the official always worked for complainant's supervisor, but
he had detailed her to work temporarily in other sections. With regard
to claim (10), the agency asserts that complainant requested a new rater
and it granted her request. The agency maintains that complainant's new
supervisor was chosen based on her work being more closely related to
complainant's work and because she had previously supervised civilians.
The agency asserts that complainant failed to establish a prima facie
case of reprisal and the alleged discriminatory acts did not constitute
adverse employment actions.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). For complainant to
prevail, he 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 consideration 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). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
As for complainant's claim of retaliatory harassment, we note that 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 1129, 1138-1139 (D.C. Cir. 1985). Whether the
harassment is sufficiently severe to trigger a violation of the law
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). In order to set forth a
prima facie case of reprisal, complainant must show that (1) she engaged
in a protected activity; (2) the agency was aware of her protected
activity; (3) subsequently, she was subjected to adverse treatment by
the agency; and (4) a nexus exists between the protected activity and the
adverse action. See Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass. 1976), aff'd. 545 F.2d 222
(1st Cir. 1976).
We shall assume arguendo that complainant has established a prima facie
case of reprisal. The agency stated that complainant did not comply
with her supervisor's instruction on September 13, 2002 to complete a
short assignment that needed to be done quickly. The supervisor stated
that his voice during this incident was elevated, but he was not yelling
at complainant. As for claim (2), the supervisor stated that the mission
requirements within the organization are time sensitive. The supervisor
denied micromanaging complainant's work, but stated that he met with all
of his employees to ascertain the status of their workload. With regard
to claim (3), the supervisor stated that complainant's workload is no
heavier than any other employee. As for claim (4), the supervisor stated
that his voice does elevate, but he did not yell at complainant regarding
her work assignments. With respect to claim (5), the supervisor stated
that he did a comparison analysis based on complainant's accomplishments
and her performance objectives and rated her �Highly Successful�. The
supervisor further explained that during the rating period he discussed
with complainant some performance issues with some accounts, but not each
performance objective. With regard to claim (6), the Deputy Chief of
Staff stated that the change in complainant's performance objectives was
intended to ensure that complainant had a clear understanding of what was
expected of her. With respect to claim (7), the supervisor stated that
if he made the alleged comment, he was joking and not seeking to prevent
complainant from being promoted in the G8 Department. As for claim
(8), the supervisor denied turning complainant's coworkers against her.
There were statements from coworkers that complainant's behavior turned
her coworkers against her. With regard to claim (9), the agency stated
that the relevant official served on several details, but has always been
assigned to the supervisor's authorization. The supervisor stated that
this official was reassigned due to mission requirements and not reprisal.
As for claim (10), the agency asserted that the choice of complainant's
new supervisor was based on her experience in supervising civilians and
her work being similar to that of complainant. We find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
We find that complainant has not established by a preponderance of the
evidence that the agency's stated reasons for its actions were pretext
intended to mask discriminatory intent. It is clear that complainant and
her supervisor had a difficult relationship. However, the supervisor's
alleged actions in claims 1-3 generally reflected the demands of his
position and complainant's position and not retaliatory animus toward
complainant. Complainant's argument that her lower performance rating
was her first rating since she filed a prior EEO complaint against the
supervisor does warrant particular scrutiny, but we are not convinced that
the lower rating was due to reprisal rather than a level of performance
that was not quite up to complainant's previous exceptional standard.
The other alleged incidents do not reflect actions of sufficient severity
against complainant whether analyzed individually or in the context of
alleged retaliatory harassment. We therefore find that complainant has
not submitted evidence that supports her position that she was subjected
to retaliatory harassment.
The agency's decision finding no discrimination is AFFIRMED
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you
to file the action without payment of fees, costs, or other security.
See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��
791, 794(c). The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 16, 2005
__________________
Date