Jane Marte-Prindeville, Complainant,v.Joseph D. Duffey, Director, United States Information Agency, Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01972736 (E.E.O.C. Feb. 4, 2000)

01972736

02-04-2000

Jane Marte-Prindeville, Complainant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.


Jane Marte-Prindeville v. United States Information Agency

01972736

February 4, 2000

Jane Marte-Prindeville, )

Complainant, )

) Appeal No. 01972736

v. ) Agency No. CR-96-02

)

Joseph D. Duffey, )

Director, )

United States Information Agency, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

basis of sex (female) and reprisal (providing assistance to another on

EEO matters), 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

discriminated against when on June 28, 1995, she was notified of the

curtailment of her assignment as Team Leader in the Information Bureau

(I Bureau), and of her reassignment to another position in the agency

effective July 31, 1995. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the agency's decision

is AFFIRMED.

During the relevant time, complainant was employed as a Foreign Service

(FS) Officer, and worked as a Team Leader of the Democracy and Human

Rights Team, Office of Thematic Programs, I Bureau. At the time relative

to the complaint, complainant was one of 21 Team Leaders in the I Bureau.

Affidavits in the record reveal that FS Officers are assigned to a normal

tour of duty of 2-3 years. However, should an FS Officer wish to stay in a

position longer than 3 years, he or she can request an exception. At the

time relative to this complaint, complainant had worked in the I Bureau

and her predecessor position, the P Bureau, for almost 3 years total.

In October 1994, the I Bureau formed a Design Team, which was organized

for the purpose of studying recurring problems in the office and

making suggestions. Complainant was the Leader of the Design Team.

In May 1995, the Design Team presented its recommendations to the

Steering Committee. Among their suggestions was the reorganization of

the Office of Information Resources.

Contained in the record is a memorandum dated June 14, 1995, from the

Associate Director for Information (male) to the Chief of Foreign Service

Officer Personnel (male). Therein, the Associate Director requested the

transfer of complainant. As reasons, he cited the fact that complainant

had been in her current and predecessor position for nearly three years,

and that certain mitigating circumstances warranted her transfer.

Specifically, he stated that the structural changes recommended by the

Design Team primarily affected GS employees, and that "some semblance of

balance" would be achieved by the transfer of an additional FS officer

from team leadership." Furthermore, the Director stated that, complainant

"has resisted adopting the intra-team culture that is necessary for the

success of the Bureau."

Complainant averred that on June 19, 1995, her supervisor (male) told her

that her position was being rotated due to the length of time she had

worked for the I and P Bureaus. On that date, the Associate Director

issued a memorandum based upon the recommendations of the Design Team,

which announced a number of vacancies, including complainant's position.

There were four other Team Leaders affected by the changes detailed

in the memorandum, all of whom were male GS officers. The memorandum

stated that complainant's position was to be filled by a lateral

reassignment by August 1, 1995. Although complainant did not lose

grade or pay, she believed that the loss of the Team Leader position

would irrevocably damage her FS career. Complainant believed that she

was being discriminated against of the basis of sex due to her success

on the Democracy and Human Rights Team, as well as the Design Team.

She averred that senior male management, such as the Associate Director,

were threatened by her successes, but did not include any specific

examples or statements to that effect.

Complainant stated in her affidavit that of the 21 Team Leaders, only

five were affected, and that she was the only woman. Moreover, she

averred that all the other affected GS Team Leaders were permitted to

stay within the I Bureau, whereas she was transferred to another position

at the express request of the Associate Director. The individual who

replaced complainant was a white male FS officer.

Complainant also alleged that she was being retaliated against for the

assistance she provided a co-worker on an EEO matter. According to her

affidavit, in May 1995, she spoke with an individual from the I Bureau

Front Office about the co-worker and warned that the agency's actions

against the co-worker may lead to a retaliation complaint. She stated

that the timing of her subsequent curtailment of her assignment and

transfer were more than a coincidence.

On October 10, 1995, complainant filed the instant complaint. At the

conclusion of the investigation, complainant was sent the investigative

file and right to request a hearing before an EEOC administrative judge

(AJ). Complainant requested that the agency issue a final decision.

According to the agency's appeal brief, on February 11, 1997, complainant

then asked the agency to answer a list of interrogatories.<2> On

February 13, 1997, the agency returned the interrogatories, and denied

complainant's request, stating that since discovery had not been commenced

by an administrative judge, they were returning the requests.

On January 15, 1997, the agency issued a final decision finding no

discrimination. In its decision, the agency found that complainant had

established a prima facie case of sex discrimination in that she showed

that she was the only female who was rotated or reassigned during this

time, and that she was not permitted to apply for other vacancies within

the I Bureau, whereas affected men were so permitted. With respect to

complainant's reprisal allegation, the agency found that complainant

failed to establish a prima facie case of discrimination in that she

failed to show that any of the management officials were aware that she

had assisted an individual with her EEO complaint.

The agency also found that it had articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, the Associate

Director averred that "[t]he I Bureau was premised on three factors:(1)

that there would be an equal number of FS and GS Team Leaders; (2)

that there would be a rotation of jobs between FS and GS employees, and

(3) that rotations would take place after working in a position for

2-3 years." According to the Associate Director, in order to rotate

the Team Leaders, there needed to be a staggering of the rotations, and

that complainant was among the first group of rotations. Furthermore,

he averred that based upon the recommendations of the Design Team, most

of the affected personnel were GS employees. As such, he stated that

there needed to be a rotated FS Team Leader, and complainant was the

proper choice due to the fact that she already had three years tenure,

including her previous position. As support for this contention,

he stated that the normal tour of duty for FS domestic assignments is

2-3 years. He recalled that complainants' replacement, who was also a

FS officer, was selected based upon the recommendation of the Democracy

and Human Rights Team.

The Associate Director denied that he discriminated against complainant

on the basis of sex or reprisal. He averred that prior to complainant's

transfer, four of the six Team Leaders in the Thematic and Geographic

Liaison Offices were women. Following complainant's curtailment and when

the reassignments were made, four of the six FS Team Leaders were women.

The Chief, Foreign Service Personnel Division averred that FS personnel

are routinely reassigned without a loss of pay or grade. Also, although

complainant expected that she would be in the Team Leader position until

September of 1996, there was no guarantee of such.

The Associate Deputy Director also stated that the original term length

for FS Officer is 2-3 years, and that GS employees were to be rotated

in and out of Team Leader positions on a regular basis. Additionally,

although complainant was adept at developing her team, the team also

developed a "kind of wall around itself to the detriment of cross

team cooperation." The Associate Deputy Director noted that although

complainant contributed to the success of the Design Team, it was "often

at the expense of other people's patience and accomplished often by an

overbearing imposition of her own points of view and intolerance by her

of dissenting views of reasoned opposing arguments."

Complainant's supervisor averred that complainant, as an FS officer,

was coming up for rotation or retirement, and therefore her position

was the most likely for rotation due to the need for balance among GS

and FS Team Leaders.

In support of her appeal, complainant states that the agency's failure

to supply answers to her interrogatories rendered her unable to prove

pretext. She argues that she was the only FS officer rotated, which

negates the agency's reliance on the balance theory. Furthermore,

she argues that other FS and GS personnel have been given extensions to

their assignments, which proves that there could be no problem with the

rotation schedule. Complainant argues that her performance appraisal

shows that she was performing at a high level, and cites the testimony of

two of her prior subordinates who state that complainant was a successful

team leader.

In response to complainant's appeal, the agency asks that we affirm

the FAD. Furthermore, they argue that when complainant requested

that the agency issue a final decision, her representative conceded

that, "[complainant] had provided more than enough information in her

comments on the ROI to inform your decision in her best interests,"

That statement, coupled by her request for an immediate final decision by

the agency, shows that she believed the file was complete. As such, the

agency argued that complainant's request for discovery should be denied.

Furthermore, the agency argues that complainant admitted that female

FS officers have been granted extensions to their assignments, thereby

substantiating the agency's nondiscriminatory reasons for its actions.

As a preliminary matter, we find that the agency's argument that

complainant had the opportunity to request a hearing if she believed that

there was insufficient evidence in the record is persuasive. Furthermore,

we find that the submission of interrogatories, after the investigation

was completed, and following the issuance of a final decision, came too

late for the agency to properly consider.

Turning to the merits of complainant's complaint, and after a careful

review of the record, based on McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), the Commission agrees with the agency that

complainant failed to prove, by a preponderance of the evidence, that

the agency's articulated reasons for its actions were pretext for sex

or reprisal discrimination. Although we do find some evidence in the

record which may contradict the agency's reasons for its actions, that

being, documentary and witness testimony that revealed their belief that

complainant worked well with other teams, the evidence is insufficient

to prove, by a preponderance of the evidence, that she was discriminated

against based on her sex or reprisal.

In St. Mary's Honor Center v. Hicks, 900 U.S. 502 (1993), the U.S. Supreme

court held that a fact finder is not required, as a matter of law, to

find discrimination whenever it finds that the employer's explanation is

not credible. The Court further made clear that a fact finder may find

discrimination in such circumstances. The critical factor is that a fact

finder must be persuaded by the complainant that it was discrimination

that motivated the employer to act as it did. According to the Court,

it is not sufficient "to disbelieve the employer; the fact finder must

believe the plaintiff's explanation of intentional discrimination." Id. at

519.

After a careful review of the record, we find that complainant was

selected for curtailment, in part because her time in the position

was up, and in part due to subjective reasons. However, complainant

has failed to persuade us that the decision to curtail her assignment

and subsequent transfer were motivated because of her sex. We find

insufficient evidence in the record, testimonial or documentary,

indicating a discriminatory animus on the part of the Associate Director.

We also note that complainant has presented insufficient evidence that

management was aware that she had engaged in prior EEO activity.

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we AFFIRM the FAD.

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 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:

February 4, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ __________________________

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.

2The Interrogatories themselves are not dated.