01986142
02-04-2000
Marilyn E. Nelson, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Marilyn E. Nelson, )
Complainant, )
) Appeal No. 01986142
v. ) Agency No. 95-0614
) Hearing No. 260-97-9072X
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Commission from a final
decision of the agency concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. � 2000e et seq, and Section 501 of the Rehabilitation Act of
1973, 29 U.S.C. � 791.<1> The appeal is accepted in accordance with
EEOC Order No. 960, as amended
ISSUES PRESENTED
Whether complainant was subjected to disparate treatment based on physical
disability (fibrositis), sex, and reprisal when:
Her position was not upgraded to GS-8, after an audit was conducted in
1991;
She was given a performance evaluation of �marginal� for the rating
period between December 1993 and June 1994;
Her within-grade increase (WGI) was delayed until May 1995; and
Whether complainant was subjected to a hostile work environment between
January 1993 and June 1995.
BACKGROUND
Complainant filed a complaint in which she set forth the above-referenced
claims of discrimination. The agency investigated the complaint, and
referred it to an administrative judge, who recommended a finding of
no discrimination. The agency subsequently adopted the administrative
judge's recommendation as its final decision. On appeal, complainant
contests the agency's decision on its merits.
The agency employed complainant as a GS-7 engineering technician at
its research facility in East Grand Forks, Minnesota. From 1976 until
December 1993, she had been under the authority of an administrative
supervisor (AS) and a technical supervisor (TS). In accordance with
the facility's organizational scheme, the AS would approve her leave
and complete her performance evaluations, while the TS would assign
her tasks and provide input for her appraisals as a project leader. In
December 1993, the AS retired and the TS supervised complainant in both
capacities until his own retirement in September 1994.
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although this
test developed in the context of Title VII, it applies to disparate
treatment claims brought under the Rehabilitation Act where the agency
does not ostensibly rely upon complainant's disability as the reason
for its actions. Hansen v. Department of the Air Force, EEOC Appeal
No. 01920621 (September 10, 1992); Prewitt v. United States Postal
Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981).
Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978).<2> 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). Where the agency establishes, as opposed
to merely articulates, legitimate and nondiscriminatory reasons for
its actions, we can dispense with the prima facie inquiry and proceed
to the ultimate stage of the analysis, i.e., whether the complainant
has proven by preponderant evidence that the agency's explanation was
a pretext for actions motivated by prohibited discriminatory animus.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). We will now examine each disparate treatment claim.
The 1991 Position Audit
In 1991, complainant asked for a desk audit of her position. Pursuant to
instructions that she received from the personnel office, complainant
prepared a position description, with the assistance of the AS and the TS.
A specialist from the agency's personnel office in Greenbelt, Maryland,
conducted the audit. She interviewed complainant, the AS, and the TS.
At the conclusion of the interviews, the auditor prepared a final report
indicating that complainant's position should remain classified at the
GS-7 level. Complainant testified that the TS misled the auditor into
minimizing the significance of her work. Complainant neither appealed the
classification nor did she subsequently request another audit, however.
She has not presented any documents or testimony tending to show that
either the AS or the TS improperly tried to influence the outcome of
the audit. Consequently, we find no reprisal in connection with the 1991
position audit.
The 1994 Performance Evaluation
In July 1994, the AS issued complainant an overall performance rating of
�marginal� for the period between December 1993, and June 1994. The AS
testified that he recommended the marginal rating because complainant
did not meet the standard for fully successful performance in the
fifth element of her performance plan - documentation. Pursuant to
this element, complainant was required to enter data and notes in
an official notebook, and to do so in an orderly and legible manner.
The documentation requirement was part of an agency policy related to the
publication of reports for outside constituencies. The TS indicated that
on at least fifteen occasions during the rating period, complainant either
failed to log entries or logged entries that were so lacking in detail as
to be meaningless. The TS also indicated that he had to repeatedly remind
complainant to more consistently and thoroughly document her research.
The AS concurred with the TS's recommendation. The hearing testimony of
the TS is supported by his contemporaneously prepared notes documenting
those instances in which complainant's entries in the official lab
notebook were improper. Complainant has not presented any evidence,
apart from her own testimony, which contradicts the testimony of the TS
or undermines his credibility as a witness.
The 1994 WGI Delay
Complainant was due to receive her WGI on August 21, 1994. She did
not receive it until May 1995, however. Two factors contributed to
the delay. Memoranda from a personnel specialist indicated that, due to
the extensive time that complainant was on leave without pay during the
rating period, her eligibility date for the 1994 WGI was moved back to
September 4, 1994. The second factor was her marginal performance rating.
The agency's personnel directive indicates that WGI's generally go
into effect automatically, unless the employee is not performing at
an acceptable level. A WGI record form was generated by the personnel
office and sent to the facility. When he filled out complainant's WGI
record form, the TS marked the box indicating that complainant was not
performing at an acceptable level. He testified that he did so because
of complainant's marginal rating for the period ending June 15, 1994.
He then provided the form to the AS, who reviewed it, signed it, and
returned it to the personnel office. The TS's actions were consistent
with the policies and procedures prescribed in the personnel directive.
As with her other allegations, we find that complainant has not met her
burden of proof that her WGI was delayed because of her gender.
Reprisal
Complainant may establish a prima facie case of reprisal by showing:
(1) that she engaged in protected EEO activity; (2) that the officials
identified in her complaint knew of her activity; and (3) that she
was subjected to an adverse action at such a time or in such a manner
as to support a causal connection between the two events. Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318
(D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976); Frye v. Department of
Labor, EEOC Request No. 05940764 (December 15, 1994). We find that
complainant satisfied the first and second parts of the prima facie
case, but not the third. Complainant's only previous EEO complaint
occurred in 1979, when she alleged that she was receiving lower pay than
males who were doing the same work as she. Her complaint was settled,
and she was promoted two grade levels. Both the AS and the TS admitted
that they were aware of complainant's prior complaint, in that they were
both involved in the hiring of the male employees that complainant cited
as comparatives. Neither official was named in the prior complaint or
was directly involved in it. There is a twelve-year time gap between
her previous EEO complaint and the audit of her position in 1991, and a
fifteen-year time gap between that complaint and the marginal performance
evaluation and WGI delay in 1994. This lengthy passage of time severely
weakens any inference of retaliatory motivation on the part of the AS or
the TS. Complainant has not presented any documents or testimony, apart
from her own, which tends to strengthen that inference. We therefore
find that complainant has not established a prima facie case of reprisal
in connection with any of her allegations of disparate treatment.
Harassment
The harassment of an employee that would not occur but for the
employee's race, color, sex, national origin, age, disability, or
religion is unlawful if it is sufficiently patterned or pervasive. Frye
v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
deLange v. Department of State, EEOC Request No. 05940405 (March 3, 1995).
Complainant alleged that the TS harassed her by, inter alia, maintaining
detailed logs on her activities and closely monitoring her time and
attendance records. The TS testified that he had worked with complainant
since 1974, and that, for most of that time, their relationship could
be characterized as �adversarial.� He testified that he was her direct
first-line supervisor from the time she was hired in 1974 until 1976,
when a facility-wide reorganization took place. As a result of that
reorganization, the TS became a project engineer and team leader, while
the AS became complainant's nominal supervisor. The TS testified that
their relationship remained cordial until 1977, when complainant first
began to raise the issue of her position classification, and that the
relationship deteriorated after that. The TS further testified that
he maintained time logs on activities and projects, but stated without
contradiction that those logs included everyone, not just complainant.
When asked at the hearing why he monitored complainant's time and
attendance so closely, he replied that, as a team leader, he was being
held accountable by his own supervisor for the time spent on projects
by subordinates. When asked whether he had problems with complainant
because she is a woman, he replied that he did not, and mentioned that he
had no problems with the work of another female engineering technician.
As previously noted, he did not consider complainant to be disabled or
incapable of carrying out her responsibilities. Thus, complainant has
not established that any of the actions of the TS rose to the level of
discriminatory harassment.
CONCLUSION
After a review of the record in its entirety, including consideration
of the administrative judge's recommended decision and all statements
submitted on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
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:
Feb. 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.
2For the purposes of this analysis, we will assume that complainant has
a disability within the meaning of the Rehabilitation Act.