01A10587
08-21-2002
Rachel H. Ehrlich, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Rachel H. Ehrlich v. Department of the Treasury
01A10587
August 21, 2002
.
Rachel H. Ehrlich,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A10587
Agency Nos. 98-1061, 98-1227, 98-4290
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaints 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.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Program Analyst, GS-343-09, at the agency's Office
of Evaluations(OE), Office of Inspector General, Washington, D.C.
In February 1996, complainant was promoted to Program Analyst, GS-343-09,
which was a career ladder position. Complainant's first level supervisor
(S1) was the Deputy Director of OE. Complainant's second level supervisor
(S2) was the Director of OE. During the relevant time, complainant
was the only Program Analyst, GS-09, in her office. In July 1996,
complainant wrote a memorandum to the "EEO/Legal Counsel Representative"
(Memo) alleging that she was subjected to a hostile work environment
and harassment, and which Memo complainant asserts is the basis for her
reprisal allegations.
Complainant sought EEO counseling and subsequently filed formal complaints
alleging that she was discriminated against on the bases of sex (female)
and reprisal for prior EEO activity, as follows:
98-1061.<1>
(4) On July 1, 1996, complainant received a "Fully Successful" rating
on her performance appraisal for April 1 through August 11, 1996.
Complainant's performance appraisal also contained negative comments.
(6) After complainant's return from her detail, management closely
monitored her time and attendance, and imposed strict requirements on
her use of leave.
(8) On October 21, 1997, complainant received her grievance decision
regarding her performance appraisal, and realized that the agency did
not follow appropriate procedures.
98-1227.
Whether, on February 6, 1998, complainant was denied a career ladder
promotion to GS-343-11.
98-4290.
Whether, on or about June 29, 1998, complainant was issued an unfair
performance appraisal.
Initially, complainant had requested hearings before an EEOC
Administrative Judge. The three complaints were consolidated for hearing,
however, complainant withdrew her request, and the cases were remanded to
the agency for the issuance of a FAD. In its FAD, the agency concluded
that complainant had not been discriminated against.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the facts developed in the record
demonstrate that complainant met her burden of proving discrimination,
and that her claims should therefore be upheld. Also, complainant
contends that there were similarly situated comparator males in the
office, and the agency erroneously asserted that there were none.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); 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). 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, 411 U.S. 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 Claim
Regarding complainant's claim of reprisal, the Commission has stated that
adverse actions need not qualify as "ultimate employment actions" or
materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003
(May 20, 1998)). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id.
Hostile Work Environment
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
98-1061.
Concerning claims 4 and 8, complainant claimed that after writing the
Memo, she reached an informal agreement which provided that she would
be detailed to the Office of Counsel (OC). During the performance year
in question complainant was in the OE from April1 thru August 18, 1996.
During the remainder of the performance year, complainant was in the
OC. S1 rated complainant Fully Successful for her performance in OE.
Complainant's performance in OC was rated Outstanding. S1, considering
her work in OC, gave complainant an overall rating of Outstanding for
the performance period. Because complainant was concerned that the
�Fully Successful�rating and negative comments may affect her chances for
obtaining a career ladder promotion, she filed a grievance. The grievance
was denied by the Deputy Inspector General (DIG) who complainant claimed
violated grievance procedures in processing her grievance.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and its progeny, the Commission agrees with the
agency that complainant failed to establish a prima facie case of sex
discrimination because there were no similarly situated employees to
compare complainant with, and therefore, complainant was required to
set forth other evidence of acts from which, if otherwise unexplained,
an inference of discrimination can be drawn. Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). Complainant did not submit
sufficient evidence to permit an inference of discrimination. Concerning
complainant's reprisal allegations, S1 and S2 testified that they were
unaware of complainant's prior EEO activity until the Fall of 1997.
While the record reflects that complainant prepared a Memo directed to
"EEO/Legal Counsel Representative,� the record does not reflect that
the Memo was shared with S1 or S2, or that EEO activity was initiated by
complainant. S2 testified that she was advised that the matter involved a
personality conflict between complainant and S1, and not an EEO complaint.
Concerning claim 6, complainant claimed that she was harassed and
subjected to a hostile work environment when her time and attendance
were being monitored. Complainant's de facto supervisor's affidavit
specifies a substantial number of days when complainant was late for work.
Complainant was not disciplined and was not placed on a leave restriction.
Also when complainant requested a change of her duty hours, the request
was granted. Complainant has failed to demonstrate that the agency's
actions in trying to resolve her tardiness problem created a hostile or
abusive work environment claim, or that similarly situated males were
treated differently.
Concerning allegation 8, complainant is collaterally attacking the
agency's grievance procedure. A claim that can be characterized as a
collateral attack, by definition, involves a challenge to another forum's
proceeding, i.e., the grievance process, the unemployment compensation
process, the worker's compensation process, the tort claims process, and
so forth. See Fisher v. Department of Defense, EEOC Request No. 05931059
(July 15, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 24, 1993); Wilson v. Department of the Treasury, EEOC
Request No. 05950472 (January 26, 1996). The Commission has recognized
very narrow exceptions to the general prohibition on collateral attacks.
See Ellis v. United States Postal Service, EEOC Request No. 05920011
(March 12, 1992)(discriminatory application of grievance process may state
a claim). Thus, for example, if an agency refused to accept grievances
from all persons within a protected class, such as race or disability,
that allegation would state a claim. In the instant case, complainant is
challenging conduct by the DIG, i.e., engaging in personal fact-finding,
failing to include written summaries of interviews, failing to give
complainant an opportunity to review and comment on the grievance, and
the failing to issue a written decision. The FAD found that failing to
issue a written decision was a procedural error, but was not related to
complainant's sex or prior EEO activity. The Commission finds that this
claim is an impermissible collateral attack on the grievance procedure.
98-1227-Career ladder promotion to GS-343-11.
Complainant alleged that she was denied a career ladder promotion
from GS-09 to GS-11 due to sex discrimination and reprisal.<2>
After completing her detail at OC, complainant met with S2 to discuss
complainant's attendance; to whom complainant should report, i.e., a
senior staff team leader (TL); and work performance, i.e., complainant
was to receive extensive feedback, and training opportunities.
After writing concerning a promotion, complainant met with S2, who
advised complainant that her work performance did not demonstrate
that she could perform at the GS-11 level. S2 testified that based
on input from TL and complainant's immediate supervisor (S3), and S2's
own review of complainant's work, S2 did not find that complainant was
demonstrating an ability to carry out the duties of a GS-11. S3 had
attended the meeting and testified that at the meeting the knowledge
and/or skills that complainant had not demonstrated were the ones that
were discussed in detail, and although he did not make the decision not
to promote complainant, he did provide an accurate assessment of her lack
of demonstrated performance on one project. S3 stated that he answered
S2's questions concerning complainant's performance. S3 also testified
that complainant stated that she had never reviewed the performance
requirements for the next higher grade level.
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of sex and reprisal discrimination. We now
consider whether the agency articulated legitimate, nondiscriminatory
reasons for its actions, i.e. complainant had not demonstrated that she
was capable of performing at the GS-11 level. 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 claims that S2's explanation that her decision was
based on S3's input, appears to be false. However, the record does not
reveal that S2 relied solely on the input of S3. The complainant has not
met her burden in this regard. Complainant has not provided sufficient
evidence to persuade us that the agency's reasons for its actions were
a pretext for discrimination. Additionally, complainant has not shown
that she was qualified to perform adequately at the GS-11 level.
98-4290-June 29, 1998, unfair performance appraisal.
Complainant alleged that she was discriminated against on the basis
of sex and reprisal when she was given a lower performance appraisal
than her performance warranted. Complainant received an overall rating
of Successful. In the critical elements of the position, complainant
was rated Successful. However, in two sub-elements, complainant was
rated Does Not Meet. Complainant submits that she was never told that
she needed to improve her performance; that she was told by S3, at her
mid-year review, that her work was Successful; and when told that she
was not being promoted to the GS-11 ladder position, complainant was
not given any indication that her performance was deficient. S3 did
not rate any other employee during the appraisal period; and complainant
believes that S1 and S2 influenced the rating.
S3 testified that he conducted a mid-year performance evaluation
with complainant which was based on information provided to him
by complainant's previous supervisor, comments made during the career
ladder meeting, his own observations, and her work product. S3 testified
that he provide complainant an oral assessment of her performance and
areas where he observed she needed to improve. S3 also testified that
complainant was the only person he supervised and that he met with her
almost daily. S3 testified as to numerous examples of the basis for his
evaluation, e.g., written or verbal comments on five separate occasions
before product was acceptable; failed to come to a meeting on time; did
not bring material to take notes; meeting documentation required several
revisions because important information was left out; required detailed
explanations to understand a report; was not able to link information,
could not outline written documentation; a written product contained
totally inappropriate information; and on occasion ignored supervisory
guidance.
Complainant submits that a coworker, who worked with her on a limited
basis, sent a complimentary opinion to management concerning complainant's
work. Complainant relies on her sworn statement as evidence to rebut the
agency's articulated legitimate, nondiscriminatory reasons. However,
while complainant challenged certain criticisms as being unfounded or
unjustified, she does not controvert the bases for S3's appraisal.
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of sex and reprisal discrimination.
S3 provided extensive evidence to support his appraisal of complainant.
This is a legitimate, nondiscriminatory reason for the agency's action.
Therefore, the burden returns to complainant to demonstrate that the
agency's reason was 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 submits one co-worker's
opinion and her own sworn statement. This is insufficient to persuade us
that the agency's reason for its action was a pretext for discrimination.
Complainant also contends that the agency did not present
similarly-situated males employees to serve as comparators in this case.
The record reflects that complainant was the only Program Analyst, GS-09,
in her office. Complainant has not demonstrated that there were, in fact,
comparator males.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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
August 21, 2002
Date
1 Complainant alleged that she was the victim of discrimination on the
bases of sex (female) and reprisal (prior EEO activity) as contained in
eight allegations. Issues (6) and (8) were accepted for investigation.
The agency's decision to dismiss allegations (1), (2), (3), (5)and
(7) was affirmed. The agency's decision to dismiss allegation (4) was
reversed and remanded for further processing. See Ehrlich v. Department
of the Treasury, EEOC Appeal No. 01982797 (March 2, 1999).
2 A Career Ladder Position has been defined as a position where employees
may be promoted (career promotions) as they demonstrate the ability and
readiness to perform at the next higher level and when legal requirements,
e.g., time-in-grade, are met. Complainant met time-in-grade requirements.
The Personnel Officer (PO) stated that in order to be promoted to the next
grade level in a career ladder, the management official must determine
if the employee is performing the duties necessary (to include scope and
complexity of duties) written in the position description for the next
higher grade. The PO also stated that a promotion to the next higher
grade level is not guaranteed.