01A05350
04-23-2002
Patricia A. Giorgi, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Patricia A. Giorgi v. Department of the Interior
01A05350
April 23, 2002
.
Patricia A. Giorgi,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A05350
Agency No. FNP-97-070 and FNP-98-039
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD), dated September 29, 1999, 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. For the following reasons,
the Commission affirms the agency's final decision.
ISSUES PRESENTED
Whether complainant was the victim of unlawful discrimination, on the
bases of sex (female) and reprisal (prior EEO activity) based on the
incidents set forth herein and, whether the agency's actions created a
hostile work environment.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Outdoor Recreation Planner, GS-023-13, at the agency's Midwest
Regional Office, Omaha, NE facility. Complainant sought EEO counseling
and subsequently filed formal complaints on May 1, 1997, and August 11,
1997, alleging that she was discriminated against on the bases of sex
(female) and
reprisal (prior EEO activity), and alleged that agency actions created
a hostile work environment, when:
FNP-97-070
On December 10, 1996, she was provided a position description (PD) which
had been rewritten and did not support the grade and series assigned.
On December 13, 1996, her request to reactivate an �Administrative
Grievance,� filed in October 1995, or file a new grievance concerning
her PD, was denied on January 3, 1997.
She was not assigned duties from October 1995, to the filing date of her
complaint, that were commensurate with the GM-13 level of responsibility
and authority, and represented, in reality, a substantial demotion from
her previous position in violation of proper personnel practices.
She was the only pre-organization supervisor who received a personnel
action notification (SF-50), dated December 8, 1996, changing her status
to non-supervisory Outdoor Recreation Planner.
From October 1, 1995, to the filing date of her complaint, she had been
omitted from the weekly Support Systems Office (SSO) Manager's Schedule
and not been assigned �acting� responsibility as superintendent.
FNP-98-039
She was not considered for the position of the Acting Team Manager,
Stewardship and Partnerships, GS-340-14 (non-competitive temporary
promotion for 120 days), at Great Plains Systems Support Office.
She was not selected for the position of Team Manager for Stewardship
and Partnerships, GS-340-13/14 (temporary promotion not to exceed
one year), vacancy announcement, GPSSO-97-01, at Great Plains Systems
Support Office.
FNP-97-070
Prior to October, 1995, complainant was the Chief, Division of Rivers,
Trails, and Conservation Systems, which position had supervisory
responsibilities. In October 1995, complainant's office was reorganized.
The purpose of the reorganization was to streamline the government;
expand the supervisor to subordinate ratio; flatten the management
of the organization; and reduce the size of the central office.
Complainant's division and position were eliminated. As a result of
the reorganization, the agency reduced its number of supervisors from
thirty-eight to approximately twelve. Complainant was reassigned to a
non-supervisory position under a Team Leader, Stewardship and Partnership
(TL).
As a result of the reorganization, complainant alleged that she did not
have a PD which accurately described her duties and job expectations;
and that the work she was given was not commensurate with a GS-13 level.
Complainant filed a grievance requesting that she be designated as a
Deputy Team Manager. To resolve the grievance, TL submitted a new PD.
However, the PD was revised by the Human Resources Division based on a
classifier's report. The classifier reclassified the position finding
that the duties did not support a supervisory title. Complainant's
position was changed from a Supervisory Outdoor Recreation Planner,
GM-023-13, to a non-supervisory Outdoor Recreation Planner, GS-023-13.
Complainant's grade and salary were not changed.
The gravamen of complainant's allegations in FNP-97-070, nos. 1 through 4,
concern the administrative processing and content of her revised PD after
the agency's reorganization. Complainant also alleged that she was the
only pre-organization supervisor who was issued a revised SF-50 form to
reflect the classifier's revision from supervisory to non-supervisory.
Concerning allegation No. 5, complainant alleged that she was not on
the Great Lakes Support Systems Office (GLSSO) Superintendent's weekly
schedule and that only males were on the list. The GLSSO's weekly list
was a personal working tool to track the travel and whereabouts of
division chiefs and other key personnel. The schedule contained the
names of managers under GLSSO's immediate supervision and was kept by
him in order to track their schedules. Further, complainant alleged
that she was discriminated against when she was not designated �acting�
superintendent. The GLSSO testified that, as a practical matter, there
was sufficient staff above the deputy level to appoint as �acting,� and
therefore that he had no occasion to appoint at the deputy level.
FNP-98-039
Concerning allegation no. 1, when the incumbent Team Manager, Stewardship
and Partnership, GS-340-14, retired, the Great Plains SSO (GPSSO)
Superintendent, after no formal announcement, chose a selectee (male)
for the acting team manager position. GPSSO chose the selectee because
he had the best qualifications; most knowledge of the duties involved;
and had program experience working under the retiree. Complainant stated
she had no understanding of selectee's qualifications, but stated that
she had more supervisory experience. Also, complainant believed that
her gender or prior EEO participation were factors in the selection,
because it always seemed that promotional opportunities went to males.
Concerning allegation no. 2, complainant applied for the Team Manager
position. GPSSO chose the acting team manager for Team Manager for the
same reasons he previously chose him for the acting position. Also,
the selectee was chosen because he had twelve years of experience in
architectural history and cultural resource management. Further, GPSSO
chose the selectee because he had served as a supervisor, and had a
working knowledge of the on-going programs and services. GPSSO believed
that the selectee knew what was going on and could take charge of the
program immediately.
Complainant applied for the team manager position, but she did not know
if she was considered eligible for the position. Complainant was not
interviewed for the position. She alleged that selectee was preselected.
Complainant alleged that the agency's timing in the selection was
suspicious given her previous EEO activity. GPSSO reviewed and ranked
several applications, including complainant's. He did not conduct
any interviews but checked applicants' references. He identified two
finalists, the selectee and a female, both of whom he ranked higher
than complainant.
The complaints were consolidated for joint processing. At the conclusion
of the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a FAD. Complainant requested that the agency issue a FAD.
In FNP-97-070, the agency concluded that while complainant established
that she was a member of a protected group because of her sex and that
management was aware of her prior EEO activity, complainant did not
otherwise establish a prima facie case, except as to reprisal for not
being assigned duties as �acting� superintendent. As to each allegation,
the agency proceeded to discuss the agency's articulated legitimate,
nondiscriminatory reasons for its actions.
In FNP-98-039, the agency concluded that complainant had established
a prima facie case of sex discrimination and reprisal as to both
allegations. The agency then proceeded to discuss its articulated
legitimate, nondiscriminatory reasons for its actions.
The agency found that complainant was not discriminated against in both
of her complaints.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the FAD was in error for a number
of unspecified reasons and that the agency failed to recognize that its
actions treated her differently. The agency requests that we affirm
its FAD.
ANALYSIS AND FINDINGS
As an initial matter, we note that complainant contended that the
investigation of her complaint was insufficient. The agency has a duty
to develop an impartial and appropriate factual record upon which to make
findings on the claims raised by the written complaint. An appropriate
factual record is one that allows a reasonable fact finder to draw
conclusions as to whether discrimination occurred. See 29 C.F.R. �
1614.108(a). We find that the record contains sufficient information
to address complainant's allegations.
Sex Discrimination
In the absence of direct evidence of discrimination, 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). First, complainant must 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, supra at 802. Next, the agency must articulate a legitimate,
nondiscriminatory reason(s) for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Reprisal
The complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination. To establish a prima
facie case of reprisal discrimination, the 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 between
the protected activity and the adverse action. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (December 6, 1996).
We additionally note that the statutory reprisal clauses prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity. A violation will be found if an employer retaliates against a
worker for engaging in protected activity through threats, harassment in
or out of the workplace, or any other adverse treatment that is reasonably
likely to deter protected activity by that individual or other employees.
Non-selection
In analyzing an allegation of discriminatory non-selection, the elements
of a prima facie case are: (1) the complainant must show that she is a
member of a protected group; (2) the complainant must have applied and was
qualified for the position; (3) the complainant must have been considered
for and denied the position; and (4) another person, who was not a member
of the complainant's protected group, was selected at the same time the
complainant's application was denied. McDonnell Douglas Corp., supra;
Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981). Complainant may
also set forth evidence of acts from which, if otherwise unexplained,
an inference of discrimination can be drawn. Furnco Construction
Corp. v. Waters, 438 U.S. 557, 576 (1978).
Regarding the subjective nature of the selection process, we note
that the Courts have held that Title VII does not protect against
errors in judgment regarding qualifications, only against decisions
motivated by unlawful animus. Turner v. Texas Instruments, 555 F.2d
1251 (5th Cir. 1977). An agency has the discretion to choose among
equally qualified candidates so long as the decision is not premised
on an unlawful factor. See Burdine, 450 U.S. at 258- 259; Mitchell
v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981). The Commission notes that in
non-selection cases, pretext may be found where the complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Hostile Work Environment
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. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). Harassment
is actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of sex and reprisal discrimination in
both cases. We now consider whether the agency articulated legitimate,
nondiscriminatory reasons for its actions.
In FNP-97-070, nos. 1 through 4, complainant's concerns relate to the
administrative processing and content of her revised PD, which left her
without supervisory duties; and her attempts to regain those duties.
After reviewing the record, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions, e.g.; the
office was reorganized to expand the supervisor to subordinate ratio;
complainant's division and position were eliminated; the agency reduced
its number of supervisors from thirty-eight to approximately twelve; and,
as the result of an informal grievance resolution, a new PD was prepared.
The classifier testified that TL's proposed PD did not reflect significant
supervisory responsibilities and reclassified the position, eliminating
the supervisory designation. Subsequently, complainant's SF-50 form
was changed to reflect the non-supervisory designation. The delivery of
the SF-50 form to complainant was delayed, however, it appears to have
been delayed as the result of oversight, and not discrimination due to
sex or reprisal.
This is a legitimate, nondiscriminatory reason for the agency's action.
Therefore, the burden returns to complainant to demonstrate that the
agency's reasons were a pretext for discrimination, that is, that the
agency's reasons were not true and that the agency was more likely
motivated by discriminatory reasons. Complainant alleged that she was
not given good reasons for the agency's actions, and that male employees
were not treated the same. The complainant has not met her burden in
this regard. Complainant has not provided sufficient evidence that
would persuade us that the agency's reasons for its actions were a
pretext for discrimination.
Concerning allegation no. 5, complainant alleged discrimination when
she was not included on SSO's schedule and not assigned as acting
superintendent. After reviewing the record, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions, e.g.;
the GLSSO's weekly list was a personal working tool to track the travel
and whereabouts of division chiefs and other key staff; that complainant
was not among those people with whom he might have a need to meet; and a
great many individuals, similarly situated to complainant, were not on
the schedule. This is a legitimate, nondiscriminatory reason for the
agency's action. Complainant claims that not being on the list gives
the impression that she is not on the management team, and reflects
that the atmosphere in the agency is that it's a men's club and that
women do not count. Complainant has not provided sufficient evidence
that would persuade us that the agency's reasons for its actions were
a pretext for discrimination.
Complainant alleged that she was discriminated against when she was
never designated as �acting� superintendent. The GLSSO testified that,
as a practical matter, there was sufficient staff above the deputy level
to appoint an �acting� superintendent so that he did not have to appoint
at the deputy level. This is a legitimate, nondiscriminatory reason for
the agency's action. Complainant has not presented sufficient evidence
that would persuade us that the agency's reasons for its actions were
a pretext for discrimination.
In FNP-98-039, complainant alleged discrimination when she was not
selected as the acting team manager and not selected for the team manager
temporary position in the Great Plains program. Complainant alleged
that the selectee was pre-selected. After reviewing the record,
we find that the agency articulated legitimate, nondiscriminatory
reasons for its actions, e.g. the GPSSO chose the selectee because
he had the best qualifications, knowledge of the duties involved,
and program experience working under the past position holder; also,
the selectee had twelve years of experience in architectural history
and cultural resource management, had served as a supervisor, and had
a working knowledge of the on-going programs and services. Further,
GPSSO believed that the selectee knew what was going on and could take
charge of the program immediately. Complainant did not show how she was
better qualified for the acting position and has not shown the agency's
reasons to be a pretext for discrimination.
Concerning the Team Manager position, complainant contends that her
experience was better than the selectee's experience. The record includes
the GPSSO's rating information and shows that complainant was rated third.
This is a legitimate, nondiscriminatory reason for the agency's action.
Complainant did not show that she was better qualified for the position.
Complainant has not presented sufficient evidence that would persuade
us that the agency's reasons for its actions were a pretext for
discrimination.
Concerning complainant's allegation of hostile work environment,
complainant submits only generalized statements that the actions of the
agency from October 1995 to March 1997 created such an environment.
Complainant does not submit evidence that would persuade us that any
actions of the agency were sufficiently severe or pervasive to alter
the conditions of the complainant's employment.
CONCLUSION
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. Therefore, after a careful review
of the record, the agency's response, and arguments and evidence not
specifically addressed in this decision, we affirm the FAD.
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
April 23, 2002
Date