01981217
11-24-1998
Ingeborg Criss v. Department of the Army
01981217
November 24, 1998
Ingeborg Criss, )
Appellant, )
) Appeal No. 01981217
v. ) Agency Nos. 96-05-G0180
) 96-05-G0530
Louis Caldera, ) Hearing Nos. 310-97-5499X
Secretary, ) 310-97-5074X
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of reprisal (prior EEO activity)
and age (over 40), in 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.
Appellant alleges she was discriminated against when: (1) she received
a Success Level Three (Satisfactory) performance rating for the period
ending September 30, 1995; (2) she was subjected to threats, screamed at,
ridiculed, belittled, and demeaned in front of customers and co-workers;
(3) she was instructed by her immediate supervisor (S1) and second level
supervisor (S2) to perform a personnel function, and if the function
was wrong, they denied instructing her to do it and blamed her for
the error; (4) she was subjected to a hostile work environment; and
(5) she was subjected to reprisal when S2 initiated an EEO complaint
against appellant's EEO Counselor inquiring into appellant's complaint
of discrimination. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the agency's decision is AFFIRMED
as MODIFIED.
The record reveals that during the relevant time, appellant was employed
as a GS-0204-06 Civilian Liaison and Military Personnel Clerk in the
Personnel Division, Darnall Army Community Hospital, Fort Hood, Texas.
Appellant alleged that she was discriminated against on the basis of
her age and retaliated against when the above-referenced agency actions
occurred. Appellant further alleged that S1's actions created a hostile
work environment. Believing she was a victim of discrimination, appellant
sought EEO counseling and, subsequently, filed formal complaints on April
24 and November 18, 1996. At the conclusion of the investigations,
appellant received copies of the investigative reports and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
Recommended Decision (RD) finding no discrimination. The AJ concluded
that with respect to issue (1), appellant established a prima facie
case of discrimination because similarly situated employees not in
her protected classes received better ratings on their performance
evaluations. The AJ then concluded that appellant failed to establish a
prima facie case of discrimination concerning the remaining issues because
she failed to demonstrate either that she was an aggrieved individual,
or that similarly situated employees not in her protected classes were
treated differently under similar circumstances.
The AJ next concluded that S1 and S2 articulated legitimate,
nondiscriminatory reasons for the satisfactory rating provided appellant,
namely, that the performance element entitled adaptability and initiative
warranted a "needs improvement" rating, which was ultimately changed
to a "success" rating, because appellant was resistant to changes being
instituted by S2, and because appellant had demonstrated some difficulty
relating to customers. The AJ found appellant's allegations that S2
stated that civil servants should work no longer than four years was
alone insufficient to evidence age animus respecting her performance
rating by S1. In reaching this conclusion, the AJ found appellant
to be a less than credible witness. Finally, the AJ concluded that
appellant was not harassed, noting that though S1 admitted to yelling
at appellant on two occasions, S1 later apologized for one of those
occasions. Further, there was evidence presented that S1 yelled at
other employees. The agency's FAD adopted the AJ's RD. On appeal,
appellant restates arguments previously made at the hearing and makes
additional arguments in order to demonstrate that appellant was working
in a hostile environment. The agency responds by restating the position
it took in its FAD, and requests that we affirm its FAD.
After a careful review of the record, the Commission first finds that
with respect to the allegations of discrimination in issues (1) through
(3), the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that appellant
failed to present evidence that any of the agency's actions were in
retaliation for appellant's prior EEO activity or were motivated by
discriminatory animus toward appellant's age. We therefore discern
no basis to disturb the AJ's findings of no discrimination which were
based on a detailed assessment of the credibility of the witnesses.
See Gathers v. United States Postal Service, EEOC Request No. 05890894
(November 9, 1989); Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987);
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
Concerning issue (4), we note that the AJ did not employ a harassment
analysis respecting this allegation. We note that the applicable legal
standard is outlined in Wolf v. United States Postal Service, EEOC Appeal
No. 01961559 (July 23, 1998). Applying this standard to the facts in
this case, we conclude that the conduct alleged, either individually or
as a whole, was not sufficiently severe or pervasive so as to constitute a
hostile environment on any of appellant's alleged bases. We find that the
substance of appellant's allegations concern personnel actions, changes
in job responsibilities, changes in workplace policies and procedures,
or occasional callous treatment by S1 toward her. Appellant presents
no evidence that any of the above actions were objectively offensive,
abusive or hostile, and otherwise taken in order to harass her on the
basis of her prior EEO activity or her age. See supra, Wolf.
Concerning issue (5), the AJ concluded that appellant failed to establish
a prima facie case of retaliation because she failed to show that she
was subjected to an adverse employment action. While we agree with
the AJ that appellant failed to demonstrate that she was subjected to
an adverse employment action, we find that such an allegation is more
properly dismissed procedurally, for failure to state a claim. See 29
C.F.R. � 1614.107(a); Blinco v. Department of the Treasury, EEOC Request
No. 05940194 (May 25, 1994) (a complainant lacks standing to file EEO
complaint challenging the actions of a manager filing an EEO complaint,
and thus, complainant fails to state a claim); Calloway v. Department of
the Army, EEOC Appeal No. 01943406 (July 18, 1994) (permitting complainant
to file EEO complaint regarding another employee's participation in the
EEO complaint of another co-worker or other agency employee would have
a chilling effect on EEO complaint processing, and further, complainant
fails to state a claim where no harm was suffered by complainant).
Where appellant fails to state a claim, one need not employ a prima
facie analysis to the allegation. Therefore, after a careful review of
the record, including appellant's contentions on appeal, and arguments
and evidence not specifically addressed in this decision, we AFFIRM as
MODIFIED the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Nov 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations