01A10554
04-16-2002
Gail A. Wrotten, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Gail A. Wrotten v. Department of the Treasury (Internal Revenue Service)
01A10554
April 16, 2002
.
Gail A. Wrotten,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01A10554
Agency Nos. 98-3226, 99-3095, and 99-3171
DECISION
INTRODUCTION
This case involves several formal equal employment opportunity (�EEO�)
complaints filed by Gail A. Wrotten (�complainant�) with and against
her employer, the Department of the Treasury (Internal Revenue Service)
(�the agency�).<1> In the portions of these complaints accepted by
the agency for investigation, complainant contended that the agency
had discriminated against her on the bases of her race (Black) and in
reprisal (for prior EEO activity). She thus was arguing that the agency
had violated Title VII of the Civil Rights Act of 1964 (�Title VII�),
as amended, 42 U.S.C. � 2000e et seq.
More specifically, in a complaint filed on July 10, 1998, complainant
claimed that the agency had discriminated against her by (1) requiring her
to notify two managers each time she requested leave; (2) instructing her
to assist office timekeepers; (3) failing to select her as an attendee to
a training held in Dallas, Texas; (4) assigning her to serve as a backup
receptionist; and (5) subjecting her to general race-based harassment
on a continual basis.<2> In a complaint filed on February 1, 1999,
she alleged that the agency discriminated against her by (6) rating
her unfairly in a year-end performance evaluation. And in a complaint
filed on May 13, 1999, complainant argued that the agency discriminated
against her by (7) sending her a memorandum reprimanding her for certain
unprofessional behavior.
The agency investigated these claims and then issued a consolidated
final agency decision (�FAD�) finding that complainant had not proven
discrimination on any prohibited basis or claim raised. Complainant
filed a timely notice challenging this FAD. We � the United States
Equal Employment Opportunity Commission (�EEOC� or �this Commission�)
� accepted complainant's appeal, and are issuing this decision, pursuant
to 29 C.F.R. � 1614.405(a). For the reasons detailed below, we agree
with the agency and find that no unlawful employment discrimination
under Title VII was proven here. We therefore conclude that the FAD in
question should be affirmed.
ANALYSIS AND FINDINGS
We are charged with reviewing this FAD de novo (or �anew�). See 29
C.F.R. � 1614.405(a). This essentially means that in deciding this case,
we are free to accept or reject the agency's factual and legal conclusions
at will. See Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-15.
Accordingly, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence supports
a finding of unlawful discrimination here. See 29 C.F.R. � 1614.405(a).
Complainant is, at least in part, raising claims of race-based and
reprisal-related disparate treatment under Title VII. Such claims
are properly analyzed under an evidentiary framework refined over time
by the United States Supreme Court. Beginning with McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the high Court issued a series of
decisions explaining how plaintiffs (like complainant) can prove unlawful
disparate treatment where direct evidence of such discrimination is
lacking.<3> See id.; see also Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978); Board of Trustees of Keene State College v. Sweeney,
439 U.S. 24 (1978); Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981); United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711 (1983); St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); and Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000). Under this Supreme Court precedent (commonly
called the �McDonnell Douglas� framework, after the case which first
introduced it), whether an employer intentionally discriminated against
a complainant is a question of fact. See, e.g., Aikens, 460 U.S. at 715;
cf. Burdine, 450 U.S. at 255 n. 8. The plaintiff must thus persuade the
relevant fact finder (this Commission in this case), that discrimination
actually occurred.
Accordingly, an evidentiary �burden of production� is placed initially
on the complainant to put forth a prima facie case of discrimination.
The plaintiff may do so by presenting facts which, if unexplained,
reasonably give rise to an inference of discrimination (i.e., that a
prohibited consideration was a factor in the adverse employment action).
See, e.g., McDonnell Douglas, 411 U.S. at 802; see also St. Mary's Honor
Center, 509 U.S. at 510 n. 3. If complainant successfully establishes
such a prima facie case, the burden of production then shifts to the
employer to rebut the complainant's presumptive showing. That is, the
defendant must articulate legitimate, non-discriminatory reasons for
its ostensibly objectionable conduct. See, e.g., McDonnell Douglas, 411
U.S. at 802. If and when the defendant offers such a lawful explanation,
�the presumption raised by the prima facie case is rebutted� and
essentially �drops from the case.� St. Mary's Honor Center, 509 U.S. at
507. Consequently, the complainant must be given �an opportunity to prove
by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons.� Burdine, 450 U.S. at 253.
In other words, the burden of production shifts (one last time) back to
the complainant to show that the explanation offered is but a pretext
for the employer's true, prohibited discriminatory intent. See, e.g.,
McDonnell Douglas, 411 U.S. at 804, 807; and Burdine, 450 U.S. at 253.
In summary then, in a Title VII claim of disparate treatment, the
complainant at all times carries the ultimate burden of persuading the
finder of fact � by a preponderance of (albeit circumstantial) evidence
� that the complainant was a victim of intentional discrimination.
See, e.g., Sweeney, 439 U.S. at 29 (Stevens, J., dissenting); Burdine,
450 U.S. at 256; Aikens, 460 U.S. at 716; St. Mary's Honor Center, 509
U.S. at 507, 511, 518; and Reeves, 530 U.S. at 143. Complainant has
not met this burden here with respect to her race and reprisal claims.
Even if we assume for argument's sake that complainant satisfied her
initial obligation to put forth a prima facie case of race-based and/or
retaliation-related disparate treatment, the agency responded accordingly.
That is, it articulated legitimate, nondiscriminatory reasons for all
of the objectionable actions in question. Complainant failed to prove
that these facially legitimate, nondiscriminatory explanations were
a pretext for race or reprisal discrimination. There is no evidence
supporting � much less proving by a preponderance of the evidence � the
notion that complainant was intentionally treated disparately because
she is Black or engaged in prior EEO activity. Cf. St. Mary's Honor
Center, 509 U.S. at 515, 519 (holding that �a reason cannot be proved
to be �a pretext for discrimination' unless it is shown both that the
real reason was false, and that discrimination was the real reason�
for the defendant's employment action, and noting that �[i]t is not
enough . . . to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination�); and EEOC
Compliance Manual (rev. May 20, 1998), at 8-15 (providing that �[i]n
order to establish unlawful retaliation, there must be proof that the
[agency] took an adverse action because the [complainant] engaged in a
protected [EEO] activity�).
Thus, having failed to establish that such actions were taken on
the basis of her membership in a protected class (since she failed
to refute the legitimate, nondiscriminatory reasons proffered by
the agency), complainant failed to establish that she was subjected
to prohibited harassment. See Bennett v. Department of the Navy,
EEOC Request No. 05980746 (September 19, 2000); Applewhite v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01994939 (April 6,
2000); Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998); EEOC Guidance on Investigating, Analyzing Retaliation
Claims, No. 915.003 (May 20, 1998). In any event:
[F]ederal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not �extremely serious.� Rather, the
conduct must be �so objectively offensive as to alter the �conditions'
of the victim's employment.� The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999), at 4
[internal notes and citations omitted]; see also Butler v. United States
Postal Service, EEOC Appeal No. 01991252 (Nov. 14, 2001), citing Harris
v. Forklift Systems Inc., 510 U.S. 17 (1993) (providing largely the same);
Dennis v. United States Postal Service, EEOC Appeal No. 01996630 (Nov. 15,
2001) (emphasizing that a �single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct
is severe�); and Napper v. United States Postal Service, EEOC Appeal
No. 01993861 (Nov. 8, 2001) (noting that �[h]arassment of an employee
that would not occur but for the employee's . . . race . . . is unlawful,
if it is sufficiently patterned or pervasive�).
Moreover, and as the U.S. Supreme Court has put it, �[c]onduct that is
not severe or pervasive enough to create an objectively hostile or
abusive work environment � an environment that a
reasonable person would find hostile or abusive � is beyond [the purview
of federal discrimination laws]. Likewise, if the victim does not
subjectively perceive the environment to be abusive, the conduct has not
actually altered the conditions of the victim's employment, and there is
no . . . violation . . . .� Harris v. Forklift Systems Inc., 510 U.S. 17,
21 (1993); see also EEOC Notice No. 915.002, Enforcement Guidance on
Harris v. Forklift Systems, Inc. (Mar. 8, 1994), at 5 (reiterating that,
for a claim of unlawful �hostile work environment� harassment to prevail,
�the challenged conduct must not only be sufficiently severe or pervasive
objectively to offend a reasonable person [in the victim's circumstances],
but also must be subjectively perceived as abusive by the [complainant]�).
Despite complainant's subjective protestations to the contrary, in our
view, the questionable conduct in this case is not objectively severe or
pervasive enough to sustain a finding of harassment. Moreover, there
is no evidence linking such conduct to complainant's race or protected
EEO activity. Thus, even if complainant's side of the story is to be
believed � and all of the actions complained of happened as complainant
says they happened � the supervisory behavior at issue would not qualify
as unlawful race-based harassment under the standards for proving such
harassment delineated above.
CONCLUSION
Complainant has not convinced us that it is more likely than not that
racial or retaliatory animus, specifically, had anything to do with the
agency conduct at issue. Therefore, we cannot hold the agency liable
for either disparate treatment or general harassment under Title VII.
Accordingly, the FAD in question is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled �Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 16, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1At all relevant times, complainant was a Legal Clerk, GS-5, for the
agency's Office of District Counsel in Chicago, Illinois.
2Complainant cited incidents (1) through (4) as evidence that such
harassment occurred, and also stated, as further proof, that her
immediate supervisor (i) followed complainant to complainant's health
club and chastised her for spending too much time there; (ii) reviewed
complainant's sign-in/sign-out sheets and suggested that complainant
should be declared absent-without-leave; (iii) made veiled, negative
references to others about complainant's performance; and (iv) inquired
into complainant's whereabouts and criticized her when she called in to
request leave.
3Such a procedural scheme is �crucial to the success of most [disparate
treatment] claims, for the simple reason that employers who discriminate
are not likely to announce their discriminatory motive,� St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 534 (1993) (Souter, J., dissenting),
and �[t]here will seldom be �eyewitness' testimony as to the employer's
mental processes,� United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 716 (1983). Consequently, the Supreme Court has
created an evidentiary �formula [that] does not require direct proof of
discrimination.� International Brotherhood of Teamsters v. United States,
431 U.S. 324, 358 n. 44 (1977); cf. Transworld Airlines, Inc. v. Thurston,
469 U.S. 111, 121 (1985) (explicitly providing that this circumstantial
evidentiary framework is actually inapplicable where a plaintiff presents
direct evidence of discrimination).