01A22958
09-22-2003
Sandra Perillo, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Sandra Perillo v. Department of the Treasury
01A22958
September 22, 2003
.
Sandra Perillo,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A22958
Agency No. 98-3202R
Hearing No. 170-AO-8607X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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.
The record reveals that during the relevant time, complainant was employed
as a Supervisory Revenue Agent GS-13 at the agency's Philadelphia District
Office facility. Complainant sought EEO counseling and subsequently filed
a formal complaint on July 18, 1993, alleging that she was discriminated
against on the bases of race (Caucasian), national origin (Italian), sex
(female), and reprisal for prior EEO activity. Complainant's claims
allege disparate treatment in the agency's performance evaluation
system and employee development when compared to other employees. She
also alleges a hostile work environment based on her protected classes
and based on sexual harassment. Specifically, complainant alleged the
following incidents were discriminatory:
(1) in May 1993, the agency failed to appropriately maintain documents in
complainant's Employee Performance File that reflect her accomplishments;
as of July 8, 1993, the agency failed to provide complainant with a
fiscal year 1992 performance appraisal;
as of July 1993, the agency failed to change complainant's rating
of record for fiscal year 1990 appraisal year, as agreed upon in
September 1991;
as of July 1993, the agency failed to address complainant's concerns
regarding her 1991 Performance Management Recognition System (PMRS)
appraisal in the agency grievance proceedings;
as of July 1993, the agency required complainant to perform at a
higher standard for evaluation purposes and held her to more stringent
procedures than her peers;
as of July 1993, the agency failed to provide complainant with progress
reviews consistent with other agency District Managers;
as of July 1993, the agency failed to provide complainant with timely
feedback and direction regarding her performance under the PMRS;
as of July 1993, the agency failed to provide complainant with duties
that would enhance her position and development, i.e. Individual
Development Plan, Management Development Plan;
in January 1991, the agency failed to personally alert complainant of
promotional opportunities;
in April 1993, the agency failed to keep complainant's medical
information confidential;
in 1992, the agency reassigned complainant from a position as Group
Manager (Group 1834) to Manager, Quality Assurance Assessment Section;
in fiscal year 1991, the agency subjected complainant to intolerable
working conditions;
in fiscal year 1991, the agency subjected complainant to a hostile
working environment (sexual harassment) while she was employed in the
Philadelphia District Office;
as of July 8, 1993, the agency required complainant to sign her
attendance sheet each pay period;
as of July 1993, the agency failed to include all Standard Form SF-50's
in complainant's official personnel file;
as of July 1993, the agency failed to adequately communicate with
complainant and failed to provide her access through the Send-A-Message
(SAM) system;
as of July 1993 the agency failed to appropriately provide complainant
with her full general pay increase; and
on June 24, 1993, the agency limited complainant's job responsibilities
to clerical duties.
Procedurally, the Commission has issued two decisions concerning
complainant's claims. In our previous decision we upheld the dismissal of
the complaint based on the fact that the claims were inextricably linked
to claims asserted in an ongoing proceeding before the Merit Systems
Protection Board (MSPB). Perillo v.Department of the Treasury, EEOC
Appeal No. 01942484 (January 5, 1995). The MSPB declined to exercise
jurisdiction over complainant's claims and in a subsequent appeal, we
remanded the complaint for further processing. Perillo v. Department
of Treasury, EEOC Appeal No. 01985697 (December 13, 1999). Although
complainant requested a hearing, the Administrative Judge dismissed the
hearing request for complainant's failure to cooperate. (Dismissal Order
dated August 9, 2001). Complainant does not appeal the AJ's decision.
In its FAD, the agency concluded that complainant failed to state a prima
facie case of discrimination on any of the alleged bases because she did
not identify any similarly situated employee outside of her protected
groups who was treated differently than she was. The agency concluded
that complainant did not state a prima facie case of reprisal because
she did not engage in protected activity prior to any of the alleged
adverse actions. According to the agency, complainant first sought EEO
counseling in June 1993, and the actions in question all took place in
October 1990 and December 1991.
Assuming arguendo that complainant stated a prima facie case on the bases
alleged, the agency decided that it had legitimate non-discriminatory
reasons for its actions which were not shown to be a pretext for
discrimination. In particular, where complainant alleged that her
personnel file was not properly maintained and SF-50s were missing
(Nos. 1, 15), the agency concluded that all personnel actions taken
were contained in complainant's file unless they were purged according
to regulations. Complainant alleged that the agency failed to change her
1990 appraisal from "Unacceptable" to "Minimally Successful", failed to
provide her with a 1990 general pay increase because of discriminatory
motives and did not act on her grievance filed concerning a second
"Unacceptable" performance appraisal (Nos. 3, 4, 17). The agency found
that there was no evidence of a discriminatory motive and that its failure
to implement a change in complainant's 1990 performance appraisal was due
to an administrative oversight. The agency further concluded that its
denial of a pay increase was based on complainant's unacceptable rating.
She later received a partial pay increase as a result of the change to
a minimally successful rating. The agency's reason for not addressing
complainant's grievance was due to her extended absence from work from
November 1991 to September 1992.
Complainant contests the agency's finding regarding her reassignment
from the position of Group Manager in the Examination Division to the
position of Manager, Quality Assurance Assessment in 1992 ( No. 11).
The agency concluded that it had legitimate non-discriminatory reasons
for this action in that complainant received two "Opportunity to Improve"
letters in 1991 outlining her performance problems as a Group Manager.
The agency concluded that complainant's contention that she was unaware
of any performance deficiencies was not supported by the evidence
which included, among others, the two Opportunity to Improve letters
she received.
The agency found that complainant failed to demonstrate that it denied
her fair opportunities for career development, denied her the same
performance standards and feedback as other managers or that it failed
to evaluate her performance in 1992 based on discriminatory motives
(Nos. 2,5,6,7,8). The agency's articulated reason for not appraising
complainant's performance in 1992 was that she was absent from work for
an extended period, and she had not worked under her critical elements
for at least 90 days before her absence. Due to complainant's problems
handling the stress, the Chief of Personnel stated that he thought it
unwise to subject her to an in-depth review on her return. The agency
further stated that complainant did not request an Individual Development
Plan or any specific developmental assignments. Her assignment to the
Quality Assurance Section was temporary in nature pending her demotion
and removal from management, which would account for any differences
in treatment. In any event, the agency concluded that it provided
complainant with substantial feedback regarding her performance.
The agency concluded that it did not subject complainant to reprisal when
she was required to fill out checklists in her duties in the Quality
Assurance Section. This was a duty usually handled by a Revenue Agent
such as herself and had also been performed by a Cadre Manager.
Finally, addressing complainant's claim that she was subjected to
sexual harassment and to intolerable working conditions (Nos.12, 13)
the agency found that complainant failed to inform any manager that she
objected to their actions or found them offensive. In addition, the
agency concluded that even if the actions complained of occurred, they
were not severe or pervasive enough to rise to the level of harassment
or a hostile work environment and were not shown to be connected to
complainant's asserted protected groups.
ANALYSIS AND FINDINGS
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). She
must generally establish a prima facie case by demonstrating that
she 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See 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). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The Commission has reviewed the record in its entirety and concludes
that complainant failed to demonstrate that the agency's reasons for its
actions were a pretext for discrimination on any of the alleged bases.
Complainant's claims center around the agency's timing and treatment of
her in terms of her performance evaluations, developmental assignments
available to her and a hostile work environment based on sexual harassment
and her other protected bases. Our review of the record indicates
that during the relevant time period from October 1990 to July 1993,
complainant was notified that her performance was deficient and needed
improvement. She was given an opportunity to improve her performance
during two consecutive 60 day improvement periods in July and September
1991. Thus, in these instances and in others, the evidence indicates
that complainant was given ample feedback, direction and progress reviews
during her tenure as a Group Manager. Her contention that she was treated
differently in this regard, is not borne out by the evidence of record.
Complainant does not establish as pretext, the agency's underlying
reasons for rating her performance unacceptable which foreshadowed her
reassignment to the Quality Assurance Section and her eventual removal
from the management ranks. According to complainant's supervisor, Chief,
Examination Branch 8 (RMO1) complainant's performance deficiencies
resulted in a large number of cases lapsing with expired statutes,
meaning that the agency could not assess and collect taxes otherwise due.
As he explained, this was a major performance deficiency and led to her
removal from management. She was not being considered for developmental
assignments because, according to RMO1, she was not ready as evidenced by
her performance deficiencies. Additionally, her previous supervisor, the
Field Examination Branch Chief (RMO2) corroborated RMO1 in his assessment
that complainant lacked organizational skills, that she ignored feedback
and avoided discussions about her performance. He corroborated RMO1's
statements that complainant often had problems surrounding missing or
lost case files which ultimately led to expired statutes.
In many of complainant's claims, she argues that the agency unduly delayed
giving her an appraisal in 1992 and in addressing a grievance filed
during the same time period regarding a 1991 performance appraisal of
"Unacceptable." During this time period, however, the record establishes
that complainant was on extended leave due to illness from November 1991
through September 1992. Thereafter, she worked part-time and delayed
responding to the agency's proposed action to reduce her grade and remove
her from management until she had recovered more fully. Complainant did
not establish that more likely than not, her membership in protected
classes, rather than her absences, was the cause for the delays.
Complainant contends that she was subjected to intolerable working
conditions and sexual harassment. Harassment of an employee that would
not occur but for the employee's race, color, sex, national origin, age,
disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129,
1138-1139 (D.C. Cir. 1985). 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 1355, 1358 (11th
Cir. 1982). Whether the harassment is sufficiently severe to trigger
a violation of Title VII 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).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) she is a member of a
statutorily protected class; (2) she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Complainant alleges that she was not given credit for her statements
at a diversity training session in November 1990, that male employees
frequently complain that female employees were given preferential
treatment and that statements were made that Italian employees belong
in the collection division. She asserted that RMO1 raised the issue of
race in his initial meeting with the Group Managers by stating, "you may
not like me because I am black, but I'm fair." In support of her claim
of sexual harassment, complainant stated that RMO1 frequently stared
at her chest, kept her waiting, was intimidating and raised his voice.
She states she was asked to bring beer to certain managers during a
manager's meeting and she relayed an incident in which a female stripper
performed during a male manager's going away party.
We conclude from our review of the record that complainant failed to
demonstrate that these incidents even if true, were so pervasive or severe
that they created a hostile work environment or that they interfered
with her working conditions. In addition, there was no corroboration
of many of complainant's statements and she failed to provide adequate
detail especially of such facts as who made certain statements regarding
Italians or who asked her to get beer. The record indicates that
RMO1 disputed that he stared at complainant's chest, that he raised
his voice or showed complainant disrespect. Complainant asserted that
other employees supported her testimony but their testimony is not in
the record and as such cannot be relied on as corroborating evidence.
With respect to the female stripper, it is not clear from complainant's
statement that she was present during the party in question. Furthermore,
complainant stated that the agency issued an apology for the incident
to employees and she did not indicate that similar incidents occurred.
There is no evidence that complainant communicated her displeasure about
derogatory statements or the behavior of RMO1 to other managers or that
they should have known about the incidents. We cannot conclude from this
evidence alone, that complainant has demonstrated by a preponderance
of the evidence she was subjected to unlawful sexual harassment or a
hostile environment based on her protected classes.
Addressing complainant's claim that she was subjected to reprisal,
complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that:
(1) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Complainant states in her complaint that she first sought EEO counseling
in June 1993. Thereafter, on or about June 24, 1993, she contends
she was given minimal cases to review in her assignment in the Quality
Assurance Section and that she was given work below the grade 13 level.
The evidence did not establish, however, that the responsible managers
were aware of complainant's EEO activity at that time. Moreover, the
agency disputed that complainant's assignments were not appropriate
to her grade level which was changed to a GS-12. The Chief, Quality
Assessment and Analysis Section stated that other Revenue Agents in his
section had also been assigned the same duties. Complainant failed to
show this statement was not true or was a pretext for discriminatory
animus based on the fact that she engaged in protected activity.
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
__________________September 22, 2003
Date