Helen E. St. Louis, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 3, 2000
01986088 (E.E.O.C. Oct. 3, 2000)

01986088

10-03-2000

Helen E. St. Louis, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Helen E. St. Louis v. Department of Agriculture

01986088

October 3, 2000

Helen E. St. Louis, )

Complainant, )

) Appeal No. 01986088

v. ) Agency No. 940208

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

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 allegation that the agency violated Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> 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 mental disability when:

(1) it allegedly did not accommodate her disability; and whether she

has established that the agency discriminated against her based on sex

(female), age (56), and reprisal (prior EEO activity) when: (2) her

duties were reduced; (3) she was allegedly harassed; and (4) certain

administrative errors were made regarding her leave and life insurance.

BACKGROUND

The complainant filed a formal EEO complaint in January 1994 in

which she raised what have been identified as Issues 1 through 4.

Following an investigation of the complaint, the complainant did not

request a hearing and the agency issued a final decision dated July 7,

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 an

Operations Technician at the agency's facility in Bangor, Maine. As a

result of actions taken by her immediate supervisor (the Responsible

Official, RO) in May 1992, the complainant developed post traumatic stress

disorder (PTSD) and was out of work between June 1992 and June 1993.<2>

The complainant returned to work on June 1, 1993, at which point she

resumed the duties of her position under the supervision of the RO.

The complainant alleges that, in light of the problems she had with the

RO the previous year, the agency should have placed her under a different

supervisor. In this regard, the complainant argues that the agency,

by not doing this, failed to accommodate her PTSD. The complainant

acknowledges, however, that she never requested such an accommodation.

The record reveals that the complainant went out on workers' compensation

in September 1993 and thereafter filed for disability retirement.

Although the record contains little evidence regarding the nature of

the complainant's PTSD, the Commission takes judicial notice of medical

evidence in the record of EEOC Appeal No. 01985846. In particular, that

record contains a letter from a psychiatrist dated September 23, 1994,

which states that, as a result of �severe PTSD,� the complainant had

�intense psychological distress at exposure to anything that resembles

having to go to work at [her] building or see[ing] [the RO].� The letter

states further that the condition had resulted in diminished interest on

the complainant's part in significant activities; a feeling of detachment

and estrangement from others, including her mother; and �persistent

symptoms of increased arousal with sleep problems, irritability,

difficulty concentrating, hypervigilance, and exaggerated startle[d]

response.� Finally, the letter states that, although the complainant

might recover from these symptoms within 10 years, she would never

fully recover.

Issue 2

The complainant alleges that, upon returning to work, she was given

nothing to do. In particular, the complainant states that she did

not have any work for the first two to three weeks and that a number

of her former duties were being performed by a co-worker (Employee A).

In response, the RO noted that there had been some changes during the

previous year and that, to acquaint the complainant with them, he gave

her a handbook to review. The RO stated that the complainant was supposed

to notify him when she was finished, but he noted that, after two weeks,

she had not gotten back to him. The RO testified that, at that point,

he began assigning the complainant the type of work she had performed

prior to her absence. He also notes that the complainant never complained

to him about not having enough work to perform. According to Employee

A, although the complainant did not appear to do much work when she

initially returned, she noted that by early July 1993 the complainant

�began picking up work and involving herself more.�

Issue 3

In alleging that she was harassed, the complainant initially states

that, upon her return, she found a post-it note in her desk in the

RO's handwriting which stated, �1-800-EAT ****.� Although the RO

acknowledged having written the note, he denied having placed the note in

the complainant's desk and noted that, in light of their prior problems,

he made an effort to get along with her when she returned. Instead, the

RO speculated that he had written the phrase down a number of years ago

at a time when, according to him, he and the complainant were friends.

In this regard, the RO indicated that he may have given it to her as a

joke.

The complainant also alleges that, shortly after returning, the office's

then-Executive Director (ED) walked by her on one occasion and said, �Hey,

old lady, put your glasses on because at your age, you need them.� The

ED did not recall the incident but acknowledged that he may have told

the complainant to put on her glasses. He denied, however, using the

term �old lady� or making any reference to the complainant's age.

Finally, the complainant cites an incident that occurred on July 9, 1993,

when she was asked to file some papers. According to the complainant,

when she opened one of Employee A's file cabinets she found a copy of a

joke about older women. The complainant states that she became quite

upset and complained to other employees who were present. Employee A

testified that the joke had been given to her by the RO a year earlier

and that she had placed it in her file cabinet. According to Employee A,

there was no reason for the complainant to have been in her file cabinet

and she viewed the complainant's actions as an invasion of privacy.

Issue 4

The complainant states that she filled out a life insurance election

form in June 1993, but notes that an Employee Relations Specialist (ERS)

in Kansas City changed the effective date of the coverage from June 27,

1993, to a later date. The complainant also asserts that numerous errors

were made with regard to her sick and annual leave.

The ERS had little recollection of the complainant's life insurance form,

but did note that, because the complainant was not at work during the

open season for election, she was given an extension of time to complete

the form. In this regard, the ERS stated, �We might have changed

the date for beginning the policy if the open season rules required

a different date. There was certainly no discriminatory intent on my

part if the date was changed.� With regard to the complainant's leave,

both the ERS and a secretary (the Secretary) in the complainant's office

acknowledged that errors had been made. They attributed them, however,

to their lack of experience regarding a situation like the complainant's.

According to the Secretary, these errors were ultimately corrected.

ANALYSIS AND FINDINGS

Issues 1 and 3

Although the failure to reassign the complainant was raised in the

context of her disability claim, we find that it is more relevant to her

harassment claim. It is evident from the record that, at the time the

complainant returned to work, the agency was aware of both the nature

and effect of the RO's prior conduct. In particular, it was clear

to the agency that, as a result of the RO's actions, the complainant

had been unable to work between June 1992 and June 1993. Furthermore,

shortly after the RO took those actions, the agency suspended him for

two days and required him to attend EEO training. Finally, although the

agency's decision finding the RO's actions discriminatory was not issued

until December 1994, the underlying EEO complaint was filed nearly a year

prior to the complainant's return and was in the control of the agency.

As such, the agency was clearly in a position to know the full extent

of the RO's actions. Despite this knowledge, the agency nonetheless

permitted the complainant to work for the RO following her return.

Additionally, although the RO testified that he tried to avoid the

complainant, one of the first things she discovered upon her return

was the note in his handwriting stating �1-800-EAT ****.� In light

of the RO's prior animosity towards the complainant, coupled with the

circumstances regarding the note's discovery, it is reasonable to conclude

that it was intentionally placed there by the RO.<3> The Commission

finds that the aforementioned actions, when considered in their entirety,

constitute a continuation of the sex and age-based harassment that

first began in May 1992. See Kelly v. Department of Veterans Affairs,

EEOC Appeal No. 01951729 (July 29, 1998), request for reconsideration

denied, 05981118 (September 30, 1999).

Because we have determined that the agency's failure to reassign

the complainant to a different supervisor constitutes discriminatory

harassment, it is unnecessary, from a remedial standpoint, to consider

whether this action also constitutes disability discrimination.

Therefore, the Commission need not address the complainant's disability

claim.

Issues 2 and 4

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).

The complainant can establish a prima facie case of discrimination based

on sex and age by showing that: (1) she is a member of the protected

groups; and (2) she was treated differently than a similarly situated

nonmember of her protected groups. See Potter v. Goodwill Industries

of Cleveland, 518 F.2d 864, 865 (6th Cir. 1975). In this case, we find

that the complainant has not established that she was treated differently

than either a similarly situated nonmember of her protected groups and/or

an individual who is substantially younger than she.<4> Accordingly,

we find that the complainant has not established a prima facie case

based on either sex or age.

The complainant can establish a prima facie case of retaliation by showing

that: (1) she engaged in prior protected activity; (2) an official named

in the complaint knew of that activity; (3) she was disadvantaged by

an action of the employer subsequent to or contemporaneous with such

opposition and participation; and (4) the protected activity and the

adverse action were sufficiently close in time to permit an inference of

retaliatory motive. Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222

(1st Cir. 1976).

The record reveals that the complainant filed an EEO complaint in 1992 and

that relevant agency officials were aware of that complaint. Therefore,

we find that she has satisfied elements 1 and 2 of the analysis.

Furthermore, although it is not entirely apparent that the complainant

was disadvantaged with regard to Issues 2 and 4, we find sufficient

evidence to conclude that she has satisfied element 3. Finally, to the

extent the actions in Issues 2 and 4 were contemporaneous with

the complainant's prior complaint, we find she has satisfied element 4.

Accordingly, we find that the complainant has established a prima facie

case of retaliation with regard to Issues 2 and 4.

Now that the complainant has established a prima facie case, the

agency has the burden of articulating legitimate, nondiscriminatory

reasons for the challenged actions. Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 253 (1981). We find that the agency has met

this burden. Regarding Issue 2, the RO and Employee A both testified

that the complainant's workload was not intentionally decreased, and

that she was, in fact, given work to perform. With regard to Issue 4,

both the Secretary and the ERS admitted they had made errors regarding

the complainant's leave balances. They explained, however, that these

errors were not intentional and were the result of dealing with a unique

situation. As for the complainant's life insurance, the ERS testified

that her recollection was that the date of election may have been changed

due to rules surrounding the open season.

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 evidence of record does not support a finding that

the complainant's duties were intentionally decreased. In this regard,

whatever decrease did exist appears attributable to the complainant having

to become acclimated with the changes that occurred during her absence.

Furthermore, we find that the actions the complainant challenges regarding

her leave and life insurance were the result of either honest errors or

were required by regulation. Accordingly, we find that the complainant

has not established retaliation with regard to Issues 2 and 4.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD with regard to

issues 2 and 4; and to REVERSE the FAD with regard to Issues 1 and 3.

ORDER

The agency is ordered to take the following remedial action:

1. The agency shall conduct a supplemental investigation to determine

whether the complainant is entitled to compensatory damages. The agency

shall allow the complainant to present evidence in support of her

compensatory damages claim.<5> The complainant shall cooperate with

the agency in this regard. Thereafter, the agency shall issue a final

decision. 29 C.F.R. � 1614.110. The supplemental investigation and

issuance of the final decision must be completed within sixty (60)

calendar days of the date this decision becomes final. A copy of the

final decision must be submitted to the Compliance Officer, as referenced

below.

2. In the event the complainant ever returns to work for the agency,

the agency shall ensure that the RO is not permitted to work in a position

in which he is in the complainant's chain of command.

3. The agency shall provide remedial training for the RO to ensure that

acts of harassment do not recur, that no retaliatory acts are taken

against any employee who opposes unlawful discrimination, including

harassment, and that persons reporting incidents of alleged harassment

are treated in an appropriate manner.

POSTING ORDER (G1092)

The agency is ORDERED to post at its facility in Bangor, Maine, 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

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:

__10-03-00____ _____________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

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., and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., has occurred at this

facility.

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 Department of Agriculture, Bangor, Maine, facility, supports and will

comply with such Federal law and will not take action against individuals

because they have exercised their rights under law.

The Department of Agriculture, Bangor, Maine, facility, has been found to

have discriminated against an employee by returning her to the supervision

of an individual who had discriminatorily harassed her. The agency has

been ordered to determine whether the employee is entitled to an award

of compensatory damages, provide training for the supervisor, and ensure

that the supervisor is never permitted to work in the employee's chain

of command. The Department of Agriculture, Bangor, Maine, facility,

will ensure that officials responsible for personnel decisions and

terms and conditions of employment will abide by the requirements of

all Federal equal employment opportunity laws and will not retaliate

against employees who file EEO complaints.

The Department of Agriculture, Bangor, Maine, facility, 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: __________________

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 challenging the RO's actions

that resulted in an agency final decision issued in August 1994 finding

discrimination. Although the complainant did not appeal that decision to

the Commission, she did appeal the agency's subsequent decision addressing

her entitlement to compensatory damages. That appeal was docketed as

Helen St. Louis v. Department of Agriculture, EEOC Appeal No. 01985846,

and is being issued in conjunction with this decision.

03 The other note the complainant found, which contained a joke

pertaining to older women, was also in the RO's handwriting. It is less

clear, however, that this note was intended to be seen by the complainant.

Nonetheless, it is further evidence of the RO's discriminatory animus

towards older women.

04 Although comparative evidence is only one method of establishing a

prima facie case, the complainant has not presented any other evidence

sufficient to support an inference of discrimination under the alleged

bases. See Enforcement Guidance on O'Connor v. Consolidated Coin Caters

Corp., EEOC Notice 915.002 (September 18, 1996).

05 In order to assess the claim, the agency shall request from the

complainant evidence of and testimony establishing any pecuniary and

non-pecuniary injury suffered and its link to the agency's retaliatory

actions. See Feris v. Environmental Protection Agency, EEOC Appeal

No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request

No. 05950936 (July 19, 1996); Carle v. Department of the Navy, EEOC

Appeal No. 01922369 (January 5, 1993); Rivera v. Department of the Navy,

EEOC Appeal No. 01934157 (July 22, 1994).