Kathy Agan, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01980407 (E.E.O.C. Apr. 10, 2000)

01980407

04-10-2000

Kathy Agan, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Kathy Agan v. Department of the Interior

01980407

April 10, 2000

Kathy Agan, )

Complainant, )

) Appeal No. 01980407

v. ) Agency No. LLM95073

)

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

concerning her complaint of unlawful employment discrimination on the

bases of sex (female) and reprisal (prior EEO activity), in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.<1> Complainant alleges that she was discriminated against when:

(1) her supervisor constantly monitored her; (2) her supervisor denied all

of her training requests; and (3) she did not receive an award although

she received a Level Four Performance Improvement Plan Rating (PIPR).

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). For the following reasons, the

Commission AFFIRMS the FAD.

ISSUED PRESENTED

The issue on appeal is whether the agency discriminated against the

complainant on the above bases of sex and reprisal.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Personnel Assistant at the agency's Bureau of Land Management,

Salem District Office in Salem, Oregon. Complainant previously worked

at the agency's Tillamook Resource Area in Oregon as an EEO counselor.<2>

Believing she was still a victim of discrimination, complainant sought EEO

counseling, and subsequently, she filed a complaint on August 24, 1995.

In the formal complaint, she identified three claims. She believed that

she was discriminated against by the agency at Tillamook because she was

an EEO counselor, she filed a complaint, and because of the way the EEO

process had been conducted from January 1992 until the present complaint.

During the investigation of the informal complaint, the complainant

identified three other claims involving her current supervisor at

the Salem District Office. She believed that her current supervisor

intentionally discriminated against her because of her sex and in

retaliation to her former EEO complaints against the agency.<3> She

alleged that he constantly monitored her during the day, he denied all

of her training requests, and he did not give her an award for her Level

4 PIPR.

In a letter dated October 24, 1995, the agency dismissed the first

three claims that were identified in the formal complaint and accepted

the remaining three claims for investigation. The letter stated that

some of the issues had been raised in a prior EEO complaint and were

untimely. Specifically, the agency found that she had raised Claim 1

(discrimination because she was an EEO counselor) in a February 10,

1992 complaint. Also the agency found that she had not discussed Claims

2 and 3 (discrimination because she had filed a complaint and because

of the way the EEO process had been handled) with a counselor within 45

days of the alleged discriminatory events. The complainant requested

a final agency decision.

The FAD concluded that complainant failed to establish a prima facie case

of sex or reprisal discrimination because she presented no evidence that

similarly situated individuals not in her protected classes were treated

differently under similar circumstances.

On appeal, complainant contends that the agency failed to consider a

number of her arguments and the EEO process is a cover�up for management.

The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

In the absence of direct evidence, a claim of discrimination is examined

under the three-part analysis originally enunciated in McDonnell

Douglas Corporation v. Green. 411 U.S. 792 (1973). For complainant to

prevail, she must first establish a prima facie case of discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination, i.e., that a prohibited consideration was a

factor in the adverse employment action. Id. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the

agency to articulate a legitimate, nondiscriminatory reason for its

action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, the complainant bears the

ultimate responsibility to persuade the fact finder by a preponderance of

the evidence that the agency acted on the basis of a prohibited reason.

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

In order to establish a prima facie case of discrimination for a claim

of reprisal, complainant must show: (1) that she engaged in protected

activity; (2) that the alleged discriminating official was aware of the

protected activity; (3) that she was disadvantaged by an action of the

agency contemporaneously with or subsequent to such participation; and

(4) that there is a causal connection between the protected activity

and the adverse employment action. Hochstadt v. Worcester Found. for

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

F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,

86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,

683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether he has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

In this case, the Commission finds that the agency has articulated

legitimate, nondiscriminatory reasons for its actions. Specifically,

the agency stated the following reasons: (1) as administrative officer,

the supervisor is required to walk around the office area and know what

is going on in the work area, and the supervisor denies specifically

monitoring the complainant; (2) if at all, the supervisor denied a

training request because of budget constraints at the beginning of the

fiscal year; and (3) management only gave awards for employees with

a Level 5 PIPR because so many people received Level 4 and 5 ratings

that year.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory events, complainant now bears the

burden of establishing that the agency's stated reasons are merely a

pretext for discrimination. Shapiro v. Social Security Administration,

EEOC Request No. 05960403 (December 6, 1996). Complainant can do this

by showing that the agency was motivated by a discriminatory reason.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).

We find that complainant has failed to meet this burden.

The complainant alleges that the supervisor constantly monitored her

because he wanted to intimidate her. Witnesses for the complainant

support this claim. Witness 1, a former EEO counselor for the agency,

stated that on numerous occasions, whenever she visited the complainant,

the supervisor would come by the complainant's work area and "just stand

there and appear to be listening to [their] conversations" (Exhibit 14,

page 15). However, Witness 1 was not certain that the supervisor did

not demonstrate this behavior with other employees. Witness 2, who is an

employee of the agency but is not under the supervisor, stated that the

supervisor looked over everyone's partitions "a lot," including hers.

(Exhibit 15, page 10). Other female employees did not believe that

the supervisor exhibited this behavior towards the complainant or

other (female or male) employees. The supervisor denied intentionally

monitoring the complainant or other employees. He did admit that he

is taller than the partition and can effortlessly see into all of the

employees' work areas when he walks down the halls. Witnesses for the

agency and the complainant support this fact.

Also, the complainant alleges that the supervisor denied her training

requests, specifically training in California. The supervisor denied this

claim. He stated that he did not recall complainant requesting training

in California. The record supports that the complainant received numerous

training opportunities in mandatory and elective classes. A request for

the California training was not available in complainant's personnel file.

In her affidavit, the complainant admitted that she stopped making

formal requests for training because she believed the supervisor would

deny the requests. However, she alleged that she asked the supervisor

for authorization to attend training in California and that he refused.

Although he does not remember the incident, the supervisor stated he may

have told complainant to consider training in the Oregon area rather

than California for monetary reasons. The district manager, to whom

the supervisor reports, acknowledges the monetary concerns specifically

at the beginning of the fiscal year. The district manager stated that

the department did not have a budget at that time. In addition, he

stated that supervisors should always consider the budget restraints

when approving training.

Finally, the complainant alleges that the supervisor did not give her

an award for her Level 4 PIPR to retaliate against her. The supervisor

stated that management, acting within its discretion, only gave awards to

employees who received a Level 5 PIPR. No employees with a Level 4 PIPR

received an award. In the 1994 Fiscal year, many employees received Level

4 and 5 ratings. In an effort to save the department money, management

only gave awards to employees with the highest ratings. However,

the complainant did receive an on the spot award of $300 that year.

The department gave her this award in recognition for her work on the

training manual.

The Commission finds that complainant failed to present evidence that

more likely than not, the agency's articulated reasons for its actions

were a pretext for discrimination.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

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

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).

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:

April 10, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

1 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.

2 During her employment at the Tillamook Resource Area, complainant filed

two sex and reprisal complaints against the agency. As the result of

a settlement agreement, the complainant was transferred to the Salem

District Office.

3 Complainant's current supervisor at the Salem District Office

participated in the settlement agreement of the sex and reprisal

complaints involving the Tillamook Resource Area.