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.