01980321
02-24-2000
Doris Starkes, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Doris Starkes v. Department of the Army
01980321
February 24, 2000
.
Doris Starkes,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01980321
Agency No. AUGVFO9506F0040
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (black), sex (female), national origin (African-American)
and reprisal in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges she was
subjected to continuous harassment, coercion, and interference in carrying
out her duties as the Chief of the Office of Cultural Diversity (formerly
named the Equal Employment Opportunity Office). Complainant specifically
asserts her first-level supervisor demonstrated discriminatory animus,
on August 12, 1995, when he gave her a finalized, overall performance
rating of "Highly Successful" for the period of November 1, 1993 to
October 31, 1994, and not a rating of "Exceptional." The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was
employed as a Equal Employment Manager, at the agency's Savannah District,
U.S. Army Corp of Engineers, Savannah Georgia. Complainant stated that
the constraints and controls placed on her by management have prevented
her from becoming an exceptional employee. Complainant stated that she is
forced to work under Standard Operating Procedures and other District
policy that contradicts agency regulations. She specifically cited
the interference by two fellow employees, OHR1 and OC1, concerning
the processing of EEO complaints. OHR1, Personnel Officer, worked
with the Office of Human Resources (OHR); and OC1, Principal Senior
Assistant District Counsel and District Labor Counselor, worked with
the Office of Counsel (OC). Complainant asserted that both OHR1 and OC1
have scheduled/attended settlement meetings with attorneys outside the
presence of EEO personnel. She further asserted that the OHR has given
advice on EEO matters to managers without referring them to EEO. Moreover,
complainant stated that she was constantly being rated on how well she got
along with the OHR and the OC. Complainant's first-line supervisor and
rating official during her performance appraisal period was supervisor
A (Major, Deputy Engineer for Support). Her second-line supervisor
and reviewing official during this appraisal period was supervisor B
(Colonel and Commander for the Corps of Engineers). Complainant declared
that both OHR1 and OC1 have been upgraded in their respective positions,
while she has been told by supervisor A that her position will never be
more than a GS-12. Complainant also stated that she has been denied the
opportunity for leadership training, and that EEO personnel were excluded
from social events at the District. Finally, complainant asserted that
the Executive Office, OHR1 and OC1 have labeled her an "advocate" for
EEO complainants; that she has been accused of "deliberately" holding-up
the Affirmative Employment Plan (AEP) for which she is held responsible;
and that she has been considered, essentially, uncooperative as a team
player at the Savannah District.
The record indicates that complainant had initiated an EEO claim in
September 1992 against Supervisor A prior to the events giving rise to
this appeal; the record further reflects that the matter was settled
sometime in 1993.
Supervisor A stated that he was aware of complainant's prior EEO activity
which named him as the responsible official. He further stated that the
performance ratings for all seven of his supervised employees were late
because he was learning the new appraisal system, and that complainant was
not singled-out. He asserted that he met with complainant on January 18,
and February 6, 1995 to discuss his initially-proposed rating of "Fully
Successful." He further asserted that these meetings resulted in him
upgrading the appraisal to Highly Successful in an attempt to resolve
the matter. However, he stated this appraisal was still not finalized,
because when meeting with her again on April , complainant still wanted
to argue about some of the ratings, Supervisor A further stated that
shortly after April 7th, he became aware that complainant had filed a
complaint and thus did not complete the appraisal until after the informal
processing of this complaint. He testified that he ultimately finalized
the appraisal, which complainant declined to sign, and submitted it,
on August 12, 1995, to the OHR so that it could be entered into their
automated system. He further testified that he had given her "top box"
ratings (Exceptionals) in the past. However, supervisor A noted that
the old rating system was based on performance standards, while the
new rating system is based on performance objectives. He stated that
he did not evaluate complainant on how well she got along with other
staff officers, but instead on how well she attempted to coordinate
with other offices. He declared that he did not compare complainant's
ratings with those of OHR1 and OC1 because he did not rate them. He also
declared that he did not compare complainant as closely with the others
he supervised because they had "different levels of responsibility." He
asserted that he had not denied complainant leadership opportunities,
noting that he had approved her request to attend the Army Management
Staff College and to pursue graduate work. He further asserted that he
had expressed to complainant hat the highest possible classification of
her position would be a GS-12, based on the scope of responsibility for
that position. Supervisor A stated that he has never called complainant
an advocate, and that the AEP was not deliberately delayed. He further
stated, however, that many times he needed to return it to complainant
for format and grammatical reasons, as well as for coordination comments
from the OHR and the OC. While noting that settlement meetings involving
only the OC (without OHR AND EEO) and complainant's lawyer are routine at
the District, supervisor A stated that the Standard Operating Procedures
for the processing of complaints had been in place since 1991.
Supervisor B testified that complainant simply did not deliver a
performance commensurate with her potential. Supervisor B stated that
the OHR, OC and EEO are like a "three-legged stool" in the District. He
maintained that if you were missing one, you were missing part of the
picture. Supervisor B testified that if managers went to OHR, it was
because complainant was not available. He further testified that the
OHR simply explained to the managers what the regulations were. He
noted that he issued a "letter of concern" to complainant because he
did not believe that she had been active enough in the development of
the AEP. While noting that he did not believe that complainant had been
subjected to coercion or harassment, he stated that she has been rated,
solely, on demonstrated performance.
OC1 stated that the Savannah District Policy is that only attorneys
represent the District in matters involving outside disputes, even in
EEO matters. She testified that she did recall using the term, advocate,
to describe complainant at a team-building conference where everyone was
encouraged to vent their "feelings and perceptions." While noting that
her philosophy on the EEO process may differ from that of complainant's,
she stated that she did not schedule meetings in any way to discriminate
against complainant or anyone else on the basis of a protected group.
OHR1 stated that race has never entered into any interaction or decision
that involved complainant. She further stated that she believed the
"3 team office concept" is effective in resolving complaints and is in
the best interest of the District.
Believing she was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a complaint on June 6,
1995. By letter dated June 8, 1995, complainant was advised that her
allegation had been accepted for investigation. At the conclusion of the
investigation, complainant was sent a copy of the investigative file and
notified of the opportunity to request either a hearing before an EEOC
Administrative Judge or a FAD without a hearing. Complainant initially
responded by requesting a hearing. However, she subsequently rescinded
her request. Therefore, the agency issued its FAD on September 9, 1997.
The FAD concluded that complainant failed to establish a prima facie
case of race, sex, national origin discrimination because she presented
no evidence that similarly situated individuals not in her protected
classes were treated differently under similar circumstances. The FAD
also concluded that complainant failed to establish a prima facie case of
reprisal discrimination because she failed to establish a nexus between
the protected activity and the adverse action. The FAD then concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, namely, that supervisor A stated that he did not evaluate
complainant on how well she got along with other staff officers, but
instead on how well she attempted to coordinate with other offices. The
agency noted that supervisor A did not compare complainant's ratings
with those of OHR1 and OC1 because he did not rate them. The agency
further asserted that supervisor A had not denied complainant leadership
opportunities, noting that he had approved her request to attend the
Army Management Staff College and to pursue graduate work. Finally,
the agency noted that when complainant challenged the initially-proposed
level of Fully Successful, supervisor A agreed to raise her rating after
meeting and discussing the matter with her.
On appeal, complainant contends, mainly, that she revitalized the
District's EEO program and that she never received the recognition that
other Executive Staff Chiefs enjoyed. Complainant also acknowledges
that supervisor A gave her an overall rating of Exceptional for two
consecutive rating periods following the 1992 rating which sparked her
prior EEO involvement.
ANALYSIS
Harassment
Initially, we note that the agency failed to address complainant's
harassment claim. Complainant asserts that her supervisor's actions
constituted harassment based on her race, sex, and national origin. As
the FAD failed to provide an analysis of the harassment claim, the
Commission will address it here.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or
prior EEO activity is unlawful, if it is sufficiently patterned
or pervasive. Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with
an employee's work performance. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: "Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's
purview." Harris, 510 U.S. at 22 (1993).
To establish a prima facie case of hostile environment harassment, a
complainant must show that: (1) she belongs to 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,
Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. Evidence
of the general work atmosphere, involving employees other than the
complainant, also is relevant to the issue of whether a hostile
environment existed in violation of Title VII. Vinson v. Taylor, 753
F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in part,
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
Here, the record shows that complainant belongs to statutorily protected
classes: black, female African-American. However, we find that complainant
has not shown that the alleged harassment she was purportedly subjected
to concerned her race, sex or national origin. Furthermore, we find that
complainant has not shown that the alleged 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. In this case, while complainant
has primarily cited interference by two fellow employees with different
administrative functions, we find that their various actions, alone,
are not severe or pervasive enough to create an objectively hostile
work environment. Furthermore, much of the interference referenced by
complainant is seemingly attributed to the Standard Operating Procedures -
not to complainant's race, sex or national origin.
Disparate Treatment
Complainant can establish a prima facie case of race, sex or national
origin discrimination 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, 411 U.S. at 802). In general, to establish a prima facie
case of discrimination based on a Title VII disparate treatment claim,
complainant must show that she belongs to a statutorily protected class
and that she was accorded treatment different from that accorded persons
otherwise similarly situated who are not members of the class. Comer
v. Federal Deposit Insurance Corporation, Request No. 05940649 (May 31,
1996)(citing Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,
865 (6th Cir. 1975)). In order for two or more employees to be considered
similarly situated for the purpose of creating an inference of disparate
treatment, complainant must show that all of the relevant aspects of her
employment situation are nearly identical to those of the comparative
employees whom she alleges were treated differently. Smith v. Monsanto
Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
Here the record shows that complainant is a member of three protected
groups: black, female African-American, and that she was subjected to
adverse agency action, an overall rating of less than Exceptional. However
the Commission finds that complainant has not established that other
employees not of her protected groups were treated differently under
similar circumstances. Complainant cited two white female comparisons,
one with the OHR and the other with the OC. The record clearly indicates
that these comparators were not rated by complainant's first-line
supervisor. Moreover, while these comparators were seemingly expected to
work together with complainant as a team within the organization, each
comparator had employment responsibilities which differed from that of
complainant. Thus, the Commission finds that all of the relevant aspects
of complainant's employment situation are not nearly identical to those of
the comparative employees whom she alleges were treated differently. In
the absence of any other evidence from which to infer a discriminatory
motive, the Commission finds that complainant has not established a
prima facie case of race, national origin or sex discrimination.
Reprisal
In a reprisal claim, complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action. 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).
Here, the record clearly shows that complainant engaged in prior EEO
activity, encompassing the filing of an EEO complaint in September 1992,
through culmination of a settlement agreement some time in 1993; that
an agency official, particularly supervisor A, was obviously aware of
her prior EEO activity; and that complainant was subjected to adverse
treatment by the agency when she received a finalized, overall rating
of Highly Successful rather than Exceptional. However, we find that
complainant has failed to show a nexus between her prior EEO activity
in 1992/1993 and the current incident which occurred in August 1995. We
note that a nexus or causal relationship between her prior protected EEO
activity and the later agency action 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 he inferred. Grant
v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980). Generally, the
Commission has held that such a nexus may be established if the protected
EEO activity and the later adverse events occurred within one year of
each other. Patton v. Department of the Navy, EEOC Request No. 05950124
(June 26, 1996). In the instant case, the time elapsed between the prior
protected EEO activity and the later incident which occurred in August
1995 is well over a year. Furthermore, complainant concedes on appeal
that supervisor A gave her an overall rating of Exceptional for two
consecutive rating periods following the 1992 rating which sparked her
prior EEO involvement. Hence, without other evidence, complainant fails
to show the required causal connection between the agency actions and
therefore cannot establish a prima facie case of reprisal discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision finding
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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 (S1199)
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 [PAGE 8] 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
February 24, 2000
__________________
Date
1On 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.