01986249
04-12-2000
Darnelle M. Sneed, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Darnelle M. Sneed v. Department of the Treasury
01986249
April 12, 2000
Darnelle M. Sneed, )
Complainant, )
) Appeal No. 01986249
v. ) Agency No. 98-1306
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning her claim that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et
seq.<0> The appeal is accepted by the Commission in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues presented herein are whether the complainant has established
that the agency discriminated against her based on sex (female), race
(African American), age (DOB: July 9, 1941), and reprisal (prior EEO
activity) when: (1) she was allegedly harassed; (2) she was placed
on a performance opportunity plan; and (3) she received a "Minimally
Successful" rating on her 1992 performance appraisal.
BACKGROUND
The complainant filed an EEO complainant in August 1996 in which
she raised what have been identified above as Issues 1 through 3.<0>
Following an investigation, the complainant did not request a hearing and
the agency issued a final decision (FAD) dated July 10, 1998, finding
no discrimination. It is from this decision that the complainant now
appeals.
Issue 1
During the period in question, the complainant was employed as a
Management Analyst with the U.S. Secret Service's Policy Analysis
and Records Systems Branch (PARS). The first issue raised by the
complainant is that, between April and October 1992, she was subjected to
discriminatory harassment by her Branch Chief (the Responsible Official,
RO). The complainant has cited approximately nine incidents that occurred
during this period, which include being ordered by the RO to assist other
employees who were placing schedules in boxes; having work taken from
her; not being given a copy of her performance appraisal until two weeks
after she requested it; not being afforded an appropriate opportunity to
review the Employee Performance Work Plan (EPWP); being ordered by the
RO to sign the EPWP; and being told that she was going to be removed
from her compressed work schedule because she continually arrived at
work late and left early.
In response, the RO disputes much of what the complainant alleges.
For example, he states that the complainant's allegation regarding the
EPWP was unclear insofar as employees do not sign them. The RO also
denies telling the complainant that she was going to be removed from
her compressed work schedule. Instead, he states that he merely told
the complainant, upon approving a change to her schedule, that it was
on the condition that she arrive on time for work. In this regard, the
RO states that the complainant had arrived late for work on a number of
occasions prior to that time.
Issue 2
On April 24, 1992, the complainant was issued a memo stating that she was
being placed on a Performance Opportunity Plan (POP) to help her get her
performance up to the "Fully Successful" level. In this regard, the memo
states that the POP was being issued based on the rating of "Minimally
Successful" the complainant received on her 1991 performance appraisal.
In arguing that this action is discriminatory, the complainant states that
no other employees were placed on a POP, that there was no justification
for it, and that no guidelines were provided regarding its issuance.
Issue 3
The record reveals that, notwithstanding the POP, the complainant
proceeded to receive a rating of "Minimally Successful" on her 1992
performance appraisal. This rating was attributable, in effect, to the
rating of "1" she received in the element "Projects/Studies/Assignments."
In support of this rating, the RO testified that the complainant's
"assignments [were] neither completed on a scheduled basis nor [were]
they competently prepared," and that she "[did] not demonstrate an
ability to organize, analyze and interpret collected information."
The RO also noted that the complainant had received a rating of "1"
in the "Projects/Studies/Assignments" element on her 1991 appraisal.<0>
In support of her position, the complainant states that the RO did not
provide any specific examples of her performance deficiencies and that
she was never counseled regarding her performance.
ANALYSIS AND FINDINGS
Issue 1
It is well-settled that harassment based on an individual's race, sex,
age, and prior EEO activity is actionable. See Meritor Savings Bank
FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of harassment under those bases, the complainant must show that:
(1) she belongs to the statutorily protected classes and engaged in
prior EEO activity; (2) she was subjected to unwelcome conduct related
to her membership in those classes and her prior EEO activity; (3) the
harassment complained of was based on race, sex, age, and her prior EEO
activity; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994). If the complainant satisfies
the five elements, then the agency is subject to vicarious liability
insofar as the harassment would have been "created by a supervisor with
immediate ... authority over the [complainant]." Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999), at 4 (citing Burlington Industries, Inc.,
v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998), and Faragher
v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)).<0>
Although the complainant is able to satisfy element 1, she has not
satisfied elements 2 through 4. Initially, we find that the complainant
has not demonstrated that there is a connection between the actions she
challenges and her race, sex, age, or prior EEO activity. Furthermore,
even assuming the incidents in question occurred in the manner in which
the complainant alleges, we find that they were not sufficiently severe or
pervasive to the point where they altered the complainant's employment
and created an abusive working environment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). In this regard, we note that
the incidents in question were work-related actions taken by the RO with
which the complainant has merely registered disagreement. Accordingly,
the Commission finds the complainant has not established that she was
discriminatorily harassed.
Issues 2 and 3
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
is a three-step process. The complainant has the initial burden of
establishing a prima facie case. If the complainant meets this burden,
then the burden shifts to the agency to articulate some legitimate,
nondiscriminatory reason for its challenged action. The complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
articulated by the agency was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This analysis is equally applicable to claims brought under the ADEA. Loeb
v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
For purposes of analysis, the Commission shall presume that the
complainant can establish a prima facie case based on race, sex, age,
and reprisal. The Commission also finds, however, that the agency has
articulated legitimate, nondiscriminatory reasons for the challenged
actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Regarding Issue 2, the RO testified that the complainant
was placed on the POP because she had received a rating of "Minimally
Successful" on her 1991 performance appraisal. With regard to Issue 3,
the RO testified that the complainant received a rating of "Minimally
Successful" on her 1992 appraisal because she had not improved in the
areas of timeliness and organization.
At this point, the complainant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination. The
complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
We find that the complainant has not established pretext. Initially, we
find that the complainant has adduced insufficient evidence to conclude
that the challenged actions were in any way related to her race, sex,
age, or prior EEO activity. Furthermore, she has not demonstrated
that the articulated reasons are unworthy of credence. Specifically,
the complainant has offered nothing which suggests that the reason
she was placed on the POP was anything other than the "Minimally
Successful" rating she received on her 1991 performance appraisal.
Furthermore, although the complainant alleges that management did
not provide specific examples in support of her 1992 rating, we note
that the burden at this stage is on the complainant, not the agency.
In this regard, the complainant has offered nothing which indicates
that her performance in the area(s) in question was acceptable and/or
that it was an improvement over her performance in 1991. Accordingly,
we find that the complainant has not established discrimination and/or
retaliation with regard to these issues.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD and find the
complainant has not established that she was discriminated against
as alleged.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 12, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
01 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.
02 The complainant filed a complaint in 1992 that, following two
dismissals by the agency, resulted in a Commission decision issued in
May 1996 ordering the agency to have an EEO Counselor meet with the
complainant to clarify the issues she was raising. Sneed v. Department
of the Treasury, EEOC Appeal No. 01986249 (May 31, 1996). That meeting
culminated in the complaint currently before the Commission.
03 The 1991 appraisal states, with regard to that element, that
the complainant did not complete work in a timely manner and did not
properly conduct policy analysis.
04 When the harassment does not result in a tangible employment
action, the agency can raise an affirmative defense to liability which
it can meet by demonstrating: (a) that it exercised reasonable care
to prevent and correct promptly any harassing behavior; and (b) that
the employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, at 12. This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or reassignment) being taken against the employee. Id. at 7.