01972832
03-10-2000
Clara Prevo, Complainant, v. Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corporation, Agency.
Clara Prevo v. Federal Deposit Insurance Corporation
01972832
March 10, 2000
Clara Prevo, )
Complainant, )
) Appeal No. 01972832
v. ) Agency No. 9214
) 9238
Donna A. Tanoue, )
Chairperson, )
Federal Deposit Insurance )
Corporation, )
Agency. )
)
DECISION
Clara Prevo (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaints of unlawful employment
discrimination on the bases of race (Black), sex (female), and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted in accordance with 64 Fed. Reg. 37,644, 37, 659 (1999) (to be
codified at 29 C.F.R. � 1614.405).<2> For the following reasons, the
agency's decision is AFFIRMED, in part and REVERSED and REMANDED, in part.
ISSUES PRESENTED
The issues on appeal are whether complainant has proven by a
preponderance of the evidence that she was subjected to unlawful
employment discrimination on the bases of her race and sex when: (1)
she was harassed by her first-line supervisor (S1: white, male, no prior
EEO activity) in the early months of 1992<3>; and (2) the Director of
the then RTC Southeast Consolidated Office (D: white, male, prior EEO
activity) failed to take action when complainant informed him of S1's
harassment on January 29, 1992.<4>
Also on appeal is the issue of whether complainant has proven by a
preponderance of the evidence that she was subjected to retaliation when:
(3) she was denied a detail to the Atlanta Office Subsidiaries Unit on
September 4, 1992; (4) she was subjected to the following discipline: a)
a Letter of Reprimand dated September 22, 1992 for being Absent Without
Leave (AWOL); b) placed on leave restriction on September 22, 1992; c)
a second Letter of Reprimand dated November 3, 1992 for being AWOL on
October 5, 1992, and d) improperly charged AWOL for October 5, 1992<5>;
(5) management denied her request for immediate leave or transfer from the
Tampa Office and D's supervision, resulting in her continued subjection to
a hostile work environment; (6) she was continuously denied a request to
modify the Relocation Authorization to have her stored furniture delivered
to her home in Atlanta, rather than a location in Tampa since that office
was scheduled to close; (7) she was subjected to an audit of her Travel
Vouchers and government-sponsored credit card by the Inspector General's
Office in August 1992 at the request of her supervisory personnel; (8)
she was not selected for several positions for which she applied at the
Tampa and Atlanta offices between August and September 1992<6>; (9) on
November 2, 1992, she was notified in writing that her employment would be
terminated when the Tampa office closed, based on a recommendation by D,
even though she had a multi-year appointment not-to-exceed ("NTE") 1994;
and (10) on February 2, 1993, she received an unsatisfactory performance
appraisal signed by D.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Special Assistant to the Director, LG-14, at the Resolution Trust
Corporation, Southeast Consolidated Office, in Tampa, Florida. She was
assigned by D to work with S1 on the Subsidiary Task Force Management
team. On February 28, 1992, complainant sought EEO counseling because
she believed that S1 was harassing her. Subsequently, complainant filed
a formal complaint on April 22, 1992 wherein she described the harassing
incidents as follows: (a) her office was relocated during her absence
and without her knowledge on February 7, 1992<7>; (b) she was directed
to retract a memorandum on January 9, 1992, which she had written to
S1 and copied to others; (c) on January 28, 1992, she was given a large
work assignment to complete, but was denied support staff assistance as
provided to other professionals in similar circumstances; (d) her request
for support staff to accompany her to travel on January 24 and 29, 1992,
was over-scrutinized; and, (e) S1 objected to her request to be notified
in advance, whenever possible, if temporary help would be assigned to
use her office during her absence. She also alleged that D failed to
take action when complainant informed him of S1's harassing actions.
On September 10, 1992, complainant again sought EEO counseling and,
subsequently, filed a formal complaint on October 16, 1992. Therein,
she alleged that the agency had retaliated against her for the filing
of her first complaint and described the incidents noted above (Issue
Nos. 3-10). Complainant also alleged that these incidents constituted
harassment and created a hostile work environment.
Complainant's complaints were consolidated and referred to an independent
investigative firm on January 28, 1993, for investigation. For reasons
not explained by the agency, complainant's consolidated complaints were
referred to a different investigative firm on March 2, 1993. On November
29, 1993, at the conclusion of the investigation, complainant requested
that the agency issue a final agency decision. Having received no FAD on
November 9, 1994, complainant appealed to this Commission and was told
that her appeal was premature and that she must wait to receive a FAD.
Finally, on December 31, 1996, more than three years after complainant
requested a FAD, the agency issued its decision.
The FAD concluded that complainant failed to establish a prima facie
case of race or sex discrimination in regard to Issue Nos. 1 (a-e) and 2
because she failed to show any similarly situated employees outside her
protected groups who were treated more favorably than she. Despite this
finding, the FAD went on to articulate legitimate non-discriminatory
reasons for its actions and concluded that complainant had not met her
burden of proving discrimination.<8>
The FAD then concluded that complainant did establish a prima facie
case of retaliation for Issue Nos. 3-10. The FAD held, however, that
the agency articulated legitimate non-discriminatory reasons for its
actions and that complainant did not prove these reasons to be pretextual.
CONTENTIONS ON APPEAL
Complainant filed a substantial brief on appeal, to which the agency filed
a lengthy response. Complainant then filed a response to the agency's
response. The record also contains several letters from complainant to
this Commission concerning the agency's failure to issue a final decision.
A review of these submissions reveals that, for the most part, complainant
merely reiterates contentions raised in her complaints and affidavits.
Complainant raises for the first time on appeal, a new contention
regarding problems she experienced with the processing of her complaint.
Complainant argues that the three year delay between her request for
a FAD and the issuance of the FAD should result in the agency losing
its right to file a FAD. Complainant correctly notes that she made two
requests to this Commission that we draw inferences that the agency's
failure to provide a FAD was because it was unfavorable to do so.
In its response, the agency reiterates the conclusions made in the FAD
and argues that complainant did not provide any new evidence on appeal.
In regard to complainant's claim that the three year delay between
her request for an agency decision and the issuance of the FAD should
result in an adverse inference against the agency, the agency notes that
complainant could have filed a civil case in United States District
Court, rather than choosing to wait for the FAD. The agency argues
that there is nothing in EEOC regulations that denies the agency the
power to issue a FAD after a certain amount of time. In conclusion,
the agency asks that its FAD be affirmed.
ANALYSIS AND FINDINGS
As an initial matter, we note that the agency's failure to issue a FAD
for more than three years after complainant's request was improper.
The agency is required to issue a final decision within 60 days of
receiving notification that a complainant has requested an immediate
decision from the agency. See 64 Fed. Reg. 37,644, 37,658 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.110(b)). Here,
complainant made such a request on November 29, 1993, yet the FAD was not
issued until December 31, 1996. While we sympathize with complainant's
justified anger at this improper delay, it is an insufficient basis on
which to make a finding of discrimination.
Turning now to the issues addressed in the FAD, in the absence of
direct evidence of discrimination or retaliation, 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). Complainant has the initial burden of establishing a prima
facie case of discrimination or retaliation. A prima facie case of
discrimination based on race or sex is established where complainant
has produced sufficient evidence to show that: (1) she is a member of a
protected class; (2) she was subjected to an adverse employment action;
and (3) similarly situated employees outside her protected class were
treated more favorably in like circumstances. A prima facie case of
retaliation is established where complainant has produced sufficient
evidence to show that (1) she engaged in protected activity; (2) the
agency was aware of her participation in the protected activity; (3)
she was subjected to an adverse employment action; and (4) a nexus exists
between the protected activity and the agency's adverse action. Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318,
324 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976); Van Druff
v. Department of Defense, EEOC Appeal No. 01962398 (February 1, 1999).
Complainant may also meet this burden by presenting other evidence which
raises an inference of discrimination. Potter v. Goodwill Industries
of Cleveland, 518 F. 2d 864 (6th Cir. 1975); Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252
(1981). If the agency articulates a reason for its actions, the burden
of production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason is
discrimination or retaliation. Throughout, complainant retains the burden
of proof to establish discrimination by a preponderance of the evidence.
It is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis
in original).
Issue No. 1 (a-e)
We first note that the FAD improperly characterized Issue No. 1 (a-e)
as alleging disparate treatment. As made clear by complainant's first
complaint, the first Counselor's Report and the Report of Investigation,
complainant alleged that S1 harassed her due to her race and sex as
shown by various incidents (a-e).
To prevail on a claim of harassment, a complainant must show that (1)
she belongs to a protected group; (2) she was subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of
employment and create an abusive or hostile environment; and (3) the
harassment was based on an impermissible factor such as race or sex.
See generally, Taylor v. Department of the Air Force, EEOC Request
No. 05920194 (July 8, 1992).
Here, complainant established that she belonged to protected groups in
that she is a female African-American. A thorough review of the record
reveals, however, that even if the incidents described by complainant
were found to be sufficiently severe or pervasive to create a hostile
work environment, there is no evidence that S1's treatment of complainant
was motivated by complainant's race or sex. For example, although the
abrupt move of complainant's office when she was absent may have been
inappropriate, there is no evidence that it was motivated by her race
or sex. Similarly, while S1's refusal to attempt to warn complainant
in advance if others would be using her office may have been harsh,
there is nothing in the record to suggest that S1 refused complainant's
request due to her race or sex. At best, complainant has established
that she and S1 had a bad personal relationship. This is insufficient
to support a finding of race or sex-based harassment. See e.g., Long
v. Department of Veterans Affairs, EEOC Appeal No. 01950169 (August
14, 1997) (where confrontations with other employees are the result
of personality clashes, rather than race discrimination, race-based
harassment is not established).
Assuming that complainant also intended to allege that Issue No. 1
(a-e) was a disparate treatment claim based on race and sex, we agree
with the agency's finding that complainant has not established a prima
facie case of race or sex discrimination . She neither established
that similarly situated employees outside her protected classes were
treated more favorably, nor offered any other evidence that would give
rise to a inference of race or sex discrimination.
Issue No. 2
Complainant alleged that when she contacted D about S1's harassing
behavior, D failed to act. Complainant's claim does not allege any affect
on a term, condition, or privilege of her employment. Rather it deals
with the agency's procedure for investigating sexual harassment claims
in order to determine whether an agency is vicariously responsible for
harassment committed by a supervisor. See EEOC Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors,
No. 915.002 (June 18, 1999). In the case at hand, complainant failed to
establish that she suffered harassment at the hands of S1. Moreover, the
record establishes that an investigation into complainant's allegations
was conducted. Therefore, the agency's finding that no discrimination
took place in regard to this issue was proper.
Issue Nos. 3-10: Retaliation
As an initial matter, we note that despite the agency's treatment of
complainant's retaliation issues as only a claim of disparate treatment,
complainant contended that she also was subjected to retaliatory
harassment. We will therefore first analyze complainant's claim under
disparate treatment principles and then apply harassment principles.
Disparate Treatment
Issue No. 3: Denied Detail to Atlanta
Complainant alleged that she was denied a detail to the Atlanta RTC
office in September 1992 due to retaliatory animus. Complainant has
established a prima facie case of reprisal in regard to this issue.
Complainant engaged in protected activity in the form of a formal EEO
complaint filed April 22, 1992. In addition, complainant requested
counseling for further allegations of discrimination on September 2,
1992. The relevant agency officials acknowledged that they were aware of
complainant's protected activity. Moreover, complainant was subjected to
an adverse employment action when she was denied a detail to the Atlanta
office. Finally, Commission precedent holds that the necessary causal
connection may be shown by evidence that the adverse action followed the
protected activity within such a period of time and in such a manner that
a reprisal motive can be inferred. See Grant v. Bethlehem Steel Corp.,
622 F.2d 43 (2nd Cir. 1980); see also EEOC Compliance Manual, Section
8: Retaliation, No. 915.003 at 8-18 (May 20, 1998) . Here, complainant
filed a formal complaint five months earlier and had requested further
EEO counseling the very month she was denied a detail. Complainant has
therefore established a prima facie case of retaliation.
The agency articulated a legitimate non-discriminatory reason for
its action. The Director of the Office of Subsidiary Management in
Atlanta (DSM: white, male, prior EEO activity) testified that complainant
requested a detail to his office, but that he informed her that he did
not have anything for her. DSM testified that he told complainant that
she could apply to the position of Asset Specialist. When he received
her SF 171, however, and discovered she had no experience in subsidiary
management, he determined that he could not offer her a detail. He then
forwarded her SF 171 to other managers in the Atlanta Office.
In an attempt to establish pretext, complainant insists that DSM made a
prior verbal commitment that she would be offered a detail, and that the
only step remaining was a conversation with D. Complainant alleges that
after talking with D and learning of her EEO activity, DSM changed his
mind about offering her a detail. Complainant provides no evidence to
establish her version of events, a version that DSM denies. Complainant
also offers no evidence to show that she did have the necessary experience
in subsidiary management. She has therefore not proven that the reason
articulated by DSM is pretextual, or that the true reason for the denial
of a detail was retaliatory animus.<9>
Accordingly, the agency's finding of no discrimination in regard to
Issue No. 3 is affirmed.
Issue Nos. 4, 5, 6 and 7
With regard to Issue Nos. 4-7, after a thorough review of the record,
including complainant's submissions on appeal and the agency's
response, we find that while complainant established a prima facie
case of retaliation, she has failed to establish that the legitimate
non-discriminatory reasons articulated by the agency to explain its
actions were pretextual.<10> We therefore affirm the agency's findings
of no discrimination on these issues.
Issue No. 8: Nonselections
Complainant alleged that she was not selected for various positions in the
Atlanta and Tampa RTC offices due to retaliatory animus. She specifically
identified four positions for which she was not selected and indicated
she unsuccessfully applied to others as well.
In attempting to articulate a legitimate non-discriminatory reason for
why complainant did not receive the various promotions for which she
applied, the agency relies for the most part on generalized statements
from D concerning complainant's lack of experience and reputation for
being confrontational with supervisors. D testified that complainant
lacked specific hands-on experience in banking, savings and loan,
real estate and financial instrument matters. He further noted that
a comparison of complainant's SF 171 with those who were selected for
higher level positions established her lack of experience. We emphasize,
however, that there is no documentation in the file as to the specific
requirements of any of the positions complainant named. The record
also contains no information on who applied and/or was selected for the
positions in question. Indeed, the record contains none of the "SF 171s"
that D relied on in his testimony.
Moreover, what little evidence there is in relation to this issue casts
significant doubt on D's description of complainant's qualifications.
Her resume establishes that she graduated with an M.B.A. in Corporate
Finance from the Wharton School of Business. It also indicates experience
in business development, banking and other economics areas. The position
description for the job she held under D's supervision states that
knowledge of financial institutions and credit or real estate markets
was required. While this is only evidence of the general experience
complainant had, with nothing in the record to indicate the requirements
of the positions she applied for, the evidence of this experience casts
doubt on D's general statement that complainant lacked experience in
banking, savings and loan, real estate and financial instrument matters.
As for D's statement that complainant gained a reputation for being
confrontational with supervisors, we note that complainant's performance
appraisal from 12/31/90 - 12/31/91 gave her high marks for her ability
to maintain a cooperative working relationship with others, as well as
for accepting responsibility and making an extra effort. The reputation
she had allegedly developed, as described by D, must therefore not have
been made until the early months of 1992 at the earliest. Interestingly,
these months were the very time during which complainant first complained
about harassment at the hands of S1.
We are cognizant that the agency's burden to articulate a legitimate
non-discriminatory reason for its actions is not an onerous one. In the
case at hand, however, the record is without any independent evidence
that demonstrates complainant was less qualified for the positions
in question. Moreover, the evidence that does exist in the record
casts doubt on D's explanation of complainant's qualifications and
"confrontational" reputation. Consequently, the Commission finds that
the agency has failed to set forth, with sufficient clarity, reasons
for complainant's nonselection for a position in the Tampa office such
that she has been given a full and fair opportunity to demonstrate that
those reasons are pretext. See Parker v. United States Postal Service,
EEOC Request No. 05900110 (April 30, 1990); Lorenzo v. Department of
Defense, EEOC Request No. 05950931 (November 6, 1997). The agency
has therefore failed to provide an articulation of its reasons for not
selecting complainant for a position in the Tampa office sufficient to
overcome complainant's prima facie case of reprisal.
We further find that even assuming the agency satisfied its initial
burden, complainant established that the agency's articulation is pretext.
Commission precedent holds that when a party fails to produce relevant
evidence within its control, the failure to produce such evidence raises
an inference that the evidence, if produced, would prove unfavorable
to that party. See 29 C.F.R. �1614.108(c)(3)(i); see also, Holm
v. Department of Justice, EEOC Request No. 05940916 (December 14,
1995), citing Medinav v. United States Postal Service, EEOC Request
No. 05940468 (December 9, 1994). Here, the agency failed to provide
any documentation on the positions at issue or the applicants and/or
selectees for these positions. This failing on the agency's part makes
it impossible to determine the accuracy of D's contention that complainant
was not qualified. Moreover, the evidence that was provided casts doubt
on the explanation offered by D as to why complainant was not selected.
We find this to be an especially appropriate case in which to draw an
adverse inference against the agency because, as noted above, the agency
completed the investigation three years before it issued a FAD, indicating
that it had no shortage of time in which to ensure that the record
was complete. We therefore find that if the appropriate documentation
had been provided, it would have established that complainant was not
selected due to retaliation.<11>
Accordingly, we find that complainant was the victim of retaliation when
she was not selected for a position in the Tampa office between August
and September 1992.
The agency articulated a separate reason for not selecting complainant for
a position at the Atlanta office. Specifically, VP at the Atlanta Office
testified that due to complainant's abuse of her government-sponsored
credit card, he did not find her to be an acceptable employee, and
would not consider her for a new assignment at the Atlanta office.
This is the same reason articulated for denying complainant a transfer
to the Atlanta office and, as with the detail issue addressed above,
complainant offers nothing to establish that it is pretextual. While VP's
description of the credit card abuses committed by complainant cites far
more incidents than indicated by other testimony, complainant does not
offer any evidence to rebut VP's claim that he refused to condone her
selection due to her credit card abuse. We note that no documentation
as to the promotions, the applicants, or the selectees were provided in
relation to the Atlanta positions either, but given that the management
official in charge of the Atlanta Office testified that he opposed the
hiring of complainant, the lack of documentation is not as problematic.
In other words, even without documentation, the agency has articulated
a legitimate non-discriminatory reason for not selecting complainant
for a position in the Atlanta office and complainant has not rebutted it.
Issue No. 9: Termination
Complainant alleged she was retaliated against when she received a letter
on November 2, 1992 notifying her that her employment would be terminated
when the Tampa office closed. She contended that her termination was
based on a recommendation by D and was carried out despite the fact that
she had a multi-year appointment NTE 1994.
Complainant established a prima facie case of retaliation in that her
second complaint was filed in September 1992 and she was notified of
her termination in November 1992. We find, however, that the agency
articulated a legitimate non-discriminatory reason for complainant's
termination. Specifically, the agency noted that the effective closing
date of the Tampa office was January 31, 1993, and that all LG employees
assigned to the Tampa office, regardless of their not-to-exceed dates
and discrimination complaint activity, were notified that they would be
terminated as of that date, unless they were hired by other RTC offices.
While complainant argued that her EEO activity prevented her from being
detailed or assigned to the Atlanta RTC office and thus led to her
termination, she has not established that her attempts to transfer to
the Atlanta office failed due to retaliatory animus. She has therefore
offered no evidence to establish that the reason given for her termination
was pretextual or that the true reason was reprisal.
Issue No. 10: Unsatisfactory Performance Appraisal
The final incident complainant cites as retaliation, is her receipt on
February 2, 1993 of an unsatisfactory performance appraisal signed by D.
Complainant alleged that her performance was never unsatisfactory and
that she was given such an appraisal to help build the case against her
and to further retaliate against her for filing EEO complaints.
The agency determined that complainant established a prima facie case of
retaliation, and we agree. Although the performance appraisal was not
sent to complainant until February 1993, it is a rating of her performance
during a year when she filed two EEO complaints and the comments on the
appraisal make clear that the problems complainant was having with the
agency had an effect on the appraisal.
The appraisal at issue rates complainant on 23 individual assessment
factors. Complainant received a rating of "acceptable" on 10 factors,
a rating of "barely acceptable" on 10 factors, and a rating of
"unacceptable" on 3 factors. The appraisal was signed by D and included
several comments indicating the problems complainant was having in the
areas of meeting deadlines, working with others, attitude, dependability
and a host of other areas. While the appraisal did not give complainant
an overall rating, the breakdown of ratings she received on individual
factors, along with the negative comments, indicate that her overall
performance was judged to be unsatisfactory.
The agency articulated a legitimate non-discriminatory reason for the
appraisal. It argued that the appraisal was based on input from four
interim supervisors to whom complainant was detailed and that it was an
accurate portrayal of her performance over the year.
The record illustrates that the very month in which this unsatisfactory
performance appraisal was completed, complainant received her normal
step increase. The paperwork for this increase includes the comment
that complainant was performing at an acceptable level of competence.
This pay raise seems to be in direct contrast to the performance appraisal
complainant received. Moreover, while complainant was reprimanded for
her use of leave and abuse of her credit card during the appraisal
period, no management official ever contended that complainant had
problems performing her job or meeting deadlines. While the problems
complainant had with leave and with her government credit card support
a poor rating on a few categories, they do not justify the generally
unsatisfactory ratings that complainant received. Her performance
appraisal the year before, from December 31, 1990 to December 31,
1991, also completed by D, was highly complimentary. Finally, as
noted above, we have found D's explanations in various incidents to be
lacking credibility. Our reluctance to credit D's explanations, along
with complainant's receipt of her normal step increase, and her good
performance ratings up until she began to complain about being harassed,
cause us to doubt the agency's articulation. Moreover, no statements
for the "four interim supervisors" who allegedly completed the appraisal
were provided by the agency.
Accordingly, we find the agency's explanation for the unsatisfactory
performance rating to be pretextual and that the true reason for the
poor performance appraisal was retaliatory animus.
Harassment
The final issue that must be addressed is whether complainant has
proven a case of retaliatory harassment, an issue that the agency
failed to address. As noted above, to prevail on a claim of harassment,
a complainant must show that (1) she belongs to a protected group (or,
in this case, participated in protected activity); (2) she was subjected
to harassment that was sufficiently severe or pervasive to alter the
conditions of employment and create an abusive or hostile environment;
and (3) the harassment was based on an impermissible factor such as race,
sex or reprisal. See generally, Taylor v. Department of the Air Force,
EEOC Request No. 05920194 (July 8, 1992).
Here, while complainant described numerous incidents that she felt to be
harassing, the discussion above holds that most of the agency's actions
had valid explanations, unrelated to retaliation. The only incidents
which were found to be based on retaliatory animus were the various
nonselections to the Tampa office, and the unsatisfactory performance
appraisal. The question therefore becomes whether these incidents rise
to the level of harassment that was sufficiently severe or pervasive to
create a hostile work environment.
In evaluating the degree to which a work environment is sufficiently
severe or pervasive to constitute a hostile environment, the Commission
has noted that "A hostile environment claim generally requires a showing
of a pattern of offensive conduct." See EEOC Policy Guidance on Current
Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990).
In the case at hand, complainant cannot show this pattern. First, she
did not receive the performance appraisal until she no longer worked
at the agency. It therefore cannot be seen as creating an abusive
work environment. In terms of the nonselections involving the Tampa
office, while we have found that they were based on retaliatory animus,
we do not judge them to have created a pattern of offensive conduct.
Complainant's claim of retaliatory harassment therefore fails.
CONCLUSION
Accordingly, after a thorough review of the record, including
complainant's submissions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, the agency's
finding of no discrimination in regard to Issue Nos. 1 (a-e) and Issue
No. 2 is AFFIRMED. The agency's finding of no retaliation in regard
to Issue Nos. 3-7, 8 as it relates to positions in the Atlanta office,
and 9 is also AFFIRMED. The agency's finding of no discrimination
in regard to complainant's non-selection for various positions in the
Tampa office between August and September 1992, as well as the finding
of no discrimination in regard to the 1991-1992 performance appraisal,
is REVERSED and REMANDED in accordance with the ORDER below and applicable
regulations.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall determine the appropriate amount of back
pay, interest, and other benefits due complainant, pursuant to 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501), no later than sixty calendar days
after the date this decision becomes final. This determination shall be
based on the assumption that, if not for illegal retaliation, complainant
would have been promoted to an LG-15 position within the Tampa office
on August 1, 1992<12> and remained in that position until the closing
of the Tampa office on January 31, 1993.<13> If there is a dispute
regarding the exact amount of back pay and/or benefits, the agency shall
issue a check to complainant for the disputed amount with sixty calendar
days of the date the agency determines the amount it believes to be due.
Complainant may petition for enforcement or clarification of the amount
in dispute. The petition for clarification or enforcement must be filed
with the Compliance officer, at the address referenced in the statement
entitled "Implementation of the Commission's Decision."
2. The agency shall expunge the 1991-1992 performance appraisal from any
personnel or other records that are still maintained and replace it with
a Fully Successful performance appraisal.
3. The agency shall provide appropriate EEO training to D and any other
management official involved in the failure to select complainant for
a position in the Tampa office in August and September 1992, or in
issuing the 1991-1992 performance appraisal. Because the RTC ceased
operations in 1995, the agency shall provide this training to any of
these individuals who are still within its jurisdiction. Within thirty
calendar days of the date the training is completed, the agency shall
submit to the compliance officer appropriate documentation evidencing
completion of such training. If no responsible management official
remains in the jurisdiction of the agency, the agency shall, within the
same time period, provide appropriate documentation evidencing this fact.
4. In addition, the agency shall consider complainant's claim for
compensatory damages incurred as a result of the agency's discriminatory
action. Within fifteen days of the date this decision becomes final,
the agency shall notify complainant of her right to present evidence
to the agency regarding her claim of compensatory damages. Complainant
shall provide objective evidence that the damages claimed are a result
of the agency's discrimination and objective evidence of the amount of
claimed damages. Within thirty days of submission of such evidence, the
agency shall issue a final agency decision on the issue, with appropriate
appeal rights to the Commission. The Commission further orders that the
agency consider complainant's right to any additional attorney's fees
and costs in connection with this appeal and the submission of evidence
in connection with her claim for compensatory damages.
5. Complainant shall be awarded reasonable attorney's fees, if
appropriate, as set forth below.
6. The agency shall comply with the posting order as set forth below.
POSTING ORDER (G1092)
The agency is ORDERED to post at its regional and/or field office closest
to the now closed Tampa-based RTC office, copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
03/10/00
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:
_____________ __________________________
DATE Equal Employment Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., has occurred at the Resolution Trust Corporation,
Southeast Consolidated Office, Tampa, Florida (hereinafter "RTC".)
Effective March 21, 1995, the Federal Deposit Insurance Corporation
(hereinafter "FDIC") was given authority to process complaints of
discrimination filed against RTC and, by statute, RTC ceased operations
on December 31, 1995. This Notice is therefore being posted at the
FDIC regional and/or field office closest to Tampa, Florida.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The RTC/FDIC supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The RTC was found to have discriminated on the basis of reprisal when an
employee was not selected for various positions within the Tampa office
and received an unsatisfactory performance appraisal. The FDIC was
ordered to: (1) determine the appropriate amount of back pay and other
benefits owed complainant from the time of her nonselection to the time
of the closing of the RTC Tampa office; (2) expunge the unsatisfactory
performance appraisal from all personnel and other records and replace
it with a Fully Satisfactory performance appraisal; (3) provide training
for the management officials responsible for the retaliation, if any
such officials are employed by FDIC; (4) issue an appropriate award of
compensatory damages, if it is determined that appellant is entitled;
(5) award reasonable attorney's fees, if applicable, and (6) post
this notice.
The FDIC will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 On 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.
2 The complaint was filed against the Resolution Trust Corporation (RTC).
Effective March 21, 1995, the Federal Deposit Insurance Corporation
(FDIC) was given authority to process complaints of discrimination filed
against RTC and, by statute, RTC ceased operations on December 31, 1995.
3 The specific incidents of alleged harassment will be discussed below.
4 At some points in the relevant time period, D was complainant's
immediate supervisor. The official referenced throughout this decision
as S1 acted as complainant's first-line supervisor in January 1992,
when she worked on the Subsidiary Task Force of which he was in charge.
5 The FAD treated each leave issue complainant raised as a separate claim.
The issues have been consolidated in this decision and referenced as
Issue No. 4 because complainant's affidavit makes clear that these leave
issues are related.
6 Positions included Project Specialist, LG-15; SWAT Team Member,
LG-14/15; Special Assistant to General Manager, LG-15; and Asset
Specialist/Commercial Specialist Assets, LG-15 "and others".
7 The FAD lists the date of this event as January 7, 1992, but
complainant's complaint clearly indicates the date to be February 7, 1992.
8 The FAD incorrectly analyzed Issue No. 1 (a-e) as one of disparate
treatment as opposed to harassment.
9 D also proffered reasons for the denial of complainant's requested
detail to Atlanta. One of these reasons, is called into question by
the record. D indicated that complainant did not have the requisite
experience in banking, savings and loan, real estate, or financial
instruments. A review of her resume indicates that she had significant
experience in financial planning, banking and other economic areas.
Moreover, the position description for the job she held at the time
indicated that knowledge of financial institutions and credit or real
estate markets was required. Because the explanation offered by DSM--the
official responsible for denying the detail in question--is credible and
unrebutted by complainant, the less than credible explanation of D does
not serve to support a finding of retaliation. It is germane, however,
to D's credibility and affects later discussion.
10 We note that the FAD incorrectly characterized Issue No. 5 as
"Complainant was continually subjected to a hostile work environment."
Although complainant does allege retaliatory harassment, she does so
based on all the issues raised in her second complaint. The harassment
argument will be analyzed later in this decision.
11 In writing this decision, the Office of Federal Operations attempted
to contact someone with the agency who could establish whether it was
still possible to obtain documents relating to 1992 RTC promotions.
Despite repeated attempts, the OFO staff was not able to find any agency
personnel who could address this possibility.
12 As discussed above, the agency failed to provide any information
on when selections were made for the positions named by complainant.
Because a date is required to determine the back pay and related benefits
owed to complainant, we find that, absent discrimination, she would
have been promoted on August 1, 1992.
13 A finding of discriminatory nonselection normally results in a order
requiring the agency to place complainant in a job. In this case,
however, complainant only established that, but for discrimination,
she would have been selected to fill a position in the Tampa office.
The Tampa office closed effective January 31, 1993, and all LG
employees who had not been hired by other RTC offices were terminated.
As discussed above, complainant established neither that her termination
was discriminatory, nor that her attempts to transfer to the Atlanta
office failed due to discrimination. Accordingly, complainant would not
have been employed by the agency after January 31, 1993, even absent
discrimination. We therefore cannot order the agency to place her in
a position and must limit the award of back pay and related benefits to
the time period between August 1, 1992 and January 31, 1993.