01995092
02-01-2002
Kristie Strecker, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Kristie Strecker v. U.S. Department of Commerce
01995092
February 1, 2002
.
Kristie Strecker,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01995092
Agency Nos. 97-55-0038 and 97-55-0038-01
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD),
dated May 10, 1999, concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that
she was discriminated against on the basis of sex (female) and reprisal
(prior protected EEO activity) when:
(1) Unlike her male counterparts, complainant did not receive a promotion
to a GS-12, Financial Analyst, on her anniversary date in July 1996.
From March 1995 until June 1996, the Program Manager (PM), Countervailing
Duty Enforcement, Group 1, failed to give complainant any significant
work assignments, avoided her, and belittled her work.
The PM gave her a significantly lower performance rating in November
1996, though prior appraisals were excellent.
In retaliation for protected activity (requesting a transfer due to
alleged discriminatory treatment), the PM told complainant she made
him look bad by requesting a transfer and that complainant would regret
asking to be moved.
ISSUES PRESENTED
Whether complainant was discriminated against on the basis of sex and/or
reprisal when the agency took the above mentioned actions.
BACKGROUND
Complainant, at the time of the filing of her complaint, was a Financial
Analyst, GS-12, with the Office of Countervailing Duty Enforcement,
Anti-Dumping, International Trade Administration, U.S. Department of
Commerce, at its Washington, D.C. facility. On February 19, 1997,
complainant filed Complaint No. 97-55-0038, alleging sex discrimination
and retaliation. On March 8, 1997, a FAD was issued accepting the first
three issues but dismissing the retaliation allegation. Complainant
appealed to the Equal Employment Opportunity Commission (Commission)
asserting that, in requesting a transfer, complainant was opposing her
supervisor's discriminatory treatment of her. Subsequently, the agency
accepted the retaliation allegation and the Commission filed a letter
closure. The agency then renumbered the complaint as no. 97-55-0038-01,
which was then investigated. After completion of the investigation,
the agency notified complainant and her attorney of complainant's right
to request a hearing or a final decision. Complainant's package was
returned. When there was no response to the notification within the time
period specified in 29 C.F.R. � 1614.108(f), the agency issued its FAD.
Complainant was hired by the agency on July 11, 1994, as a Financial
Analyst, GS-1101-9, in its International Trade Administration's
Countervailing Investigations office. The position was a GS-9/11/12
career-ladder position.<1> Complainant testified that at the time of
her hire she was advised that promotions to GS-11 and GS-12 would be
automatic upon her reaching her next two anniversaries of employment.
On or about July 11, 1995, complainant was promoted to the GS-11 position.
When complainant was hired at the agency, she was temporarily supervised
by an acting program manager because PM had been detailed out of the
office. PM, who was a Supervisory Import Specialist, became complainant's
supervisor upon his return in or about January 1995. The Director (DIR),
Office of Countervailing Investigations, was complainant's second level
supervisor and was PM's immediate supervisor.
The DIR's office consisted of two programs. PM was the manager of one
program and a female was the manager of the other. During FY 1995 and FY
1996, each program consisted of two teams, each headed by a group leader
(GL). Two to five people were on each team. Complainant, during the
relevant time period, had two female group leaders (GL1 and GL2).
As a general matter, the DIR and the managers did not assign cases to
specific teams or individuals. When new cases came into the office, the
GLs decided which team would take the case. Once a group had accepted
a case, the team members were responsible for determining who would
be responsible for specific issues. Generally, a program manager's
primary contact with a group was with the group leader. All performance
appraisals of team members were done by the program managers, who
requested input from GLs as to the performance of members on their team.
For FY 1994/1995, complainant received from PM a Commendable performance
evaluation, with a score of 440 points, based on information that he
received from the acting program manager. For FY 1995/1996, PM gave
complainant a Fully Successful performance rating of 360. Complainant
appealed this performance appraisal to the DIR. The DIR after talking
to PM and GL2 revised the rating to 420, which, after correction
for a mathematical error, was reduced to 390. Although revised,
the complainant's rating of Commendable was not affected. The DIR's
memorandum to complainant's personnel file states that the complainant
should concentrate on honing her decision memoranda writing skills.
On October 9, 1996, complainant made her initial contact with an EEO
counselor advising that she was not promoted in July 1996, due to her sex,
and claimed that PM did not want to work with her because she was a woman.
Complainant also advised that she was not assigned any responsibilities
based on her educational qualifications, and because she asked to be
transferred to another group, she was denied the promotion, which was
retaliation. Complainant requested the EEO counselor not to contact
PM until after her performance evaluation, and the counselor abided by
this request. The record reflects that the EEO counselor visited PM on
November 4, 1996.
Complainant alleged that when she realized that she would not be receiving
new assignments, even though she had made requests for work, she requested
a transfer on or about June 1996. Complainant's request for transfer was
approved and on July 15, 1996 complainant was transferred to a different
group in the agency. Complainant was promoted on or about December 8,
1996, to GS-12, by her then current supervisor.
In its FAD, the agency concluded that it had met its burden to
articulate legitimate, nondiscriminatory reasons for its actions,
and that the complainant did not prove that the agency's actions were
a pretext for discrimination. Concerning the promotion, the agency
stated that the promotion was not automatically due, and that PM did
not approve the promotion primarily because complainant had difficulty
in writing a thorough, thoughtful, well organized analytical memo.
Concerning the performance rating, the agency found that the PM based
his rating on his own observations and feedback from group leaders.
Concerning the lack of significant assignments, avoiding and belittling
complainant, the agency stated that PM generally did not assign cases,
and that PM denied avoiding and belittling complainant, and treating her
differently than male analysts. Concerning the claim of retaliation,
the agency stated that PM was not aware that complainant had a complaint
about not being treated equally until he met with the EEO counselor.
Further, the PM denied telling the complainant that she would regret
asking for the transfer.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she was eligible for promotion
and the agency refused to promote her; that the agency's articulated
legitimate, nondiscriminatory reasons were untrue, and therefore, the
agency actions were discriminatory and retaliatory. The agency stated
that it did not recall receiving a statement in support of the appeal,
and believed that the FAD speaks for itself. The agency had no further
comment.<2>
ANALYSIS AND FINDINGS
Claims of discrimination alleging disparate treatment for sex and
reprisal are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979); Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 140 (2000); see
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). A complainant 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 reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
At all times, complainant retains the burden of persuasion, and it is her
obligation to persuade by a preponderance of the evidence the ultimate
issue of whether the agency's action was motivated by discrimination.
Burdine, 450 U.S. at 248; see U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711 (1983); see also O'Connor v. Consolidated Coin
Caters Corp., 517 U.S. 308 (1996); St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993). We additionally note that the statutory retaliation
clauses prohibit any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party or others
from engaging in protected activity. A violation will be found if an
employer retaliates against a worker for engaging in protected activity
through threats, harassment in or out of the workplace, or any other
adverse treatment that is reasonably likely to deter protected activity
by that individual or other employees.
The established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Since the FAD did not discuss
whether the complainant established a prima facie case and proceeded to
articulated legitimate, nondiscriminatory reasons for its actions; our
inquiry will also proceed directly to the second step of the McDonnell
Douglas analysis. Thereafter, the factual inquiry will proceed to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
We note that an agency generally has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Vanek
v. Department of the Treasury, EEOC Request No. 05940906 (January 16,
1997); Kohlmeyer v. Department of the Air Force, EEOC Request No. 05960038
(August 8, 1996); Burdine, 450 U.S. at 259.
GL1, a team leader, GS-13 (female), stated complainant was temporarily
assigned to GL1's team when complainant expressed a strong interest
in working on a Chinese case. GL1 stated that she told PM that while
complainant appeared to understand casework and wanted to do a good job,
her output was below par. GL1 stated that complainant's teammates
repeatedly did complainant's work. Further, when complainant was
required to write or explain her analysis she would miss the fundamentals.
GL1 provided information for complainant's FY96 appraisal and believed
that complainant was not promoted based on her sub-par work performance.
GL1 did not think that complainant was capable of independently
handling a case and so advised PM. GL1 stated that complainant did
not warrant a promotion to a GS-12. GL1 indicated that as concerns the
comparable employee, GL1 worked directly with him and stated that his
work performance was of a much higher quality and thoroughness than that
of the complainant's. GL1 further averred that her immediate supervisor
was PM and that she informed PM that she did not think that complainant
could independently handle a case. Although not complainant's team
leader on the other case (ferrochrome), GL1 had also spoken to PM while
complainant was working on that case and they both agreed that giving
complainant additional assignments while that case was going on would
not be appropriate. GL1 was not aware that PM treated complainant any
different from her male counterparts.
GL2, a senior import compliance specialist, GS-13 (female), stated
that she felt that complainant needed more practice and encouragement
with respect to writing and that she proposed to PM that complainant
be allowed to focus only on the ferrochrome case. PM agreed to GL2's
proposal. GL2, while working with complainant, had come to the conclusion
that complainant, while intelligent and articulate, had some type of
anxiety over writing. GL2 stated that she knew from conversations with
complainant that complainant was not very comfortable with writing.
GL2 further stated that after reviewing complainant's work and asking
her to go into more detail, complainant would write another sentence or
two with minimal detail, if any. GL2 stated that during the years that
she worked with PM, she never witnessed any discriminating behavior at
her, other women, or other ethnic minorities. She further stated that
PM maintained an open door policy, but did defer to group leaders and
other senior analysts with respect to factual matters on specific cases.
GL1 worked with the comparable employee on two occasions and stated that
the comparative's performance was superior to that of the complainant's.
Complainant's second level supervisor was the Director (DIR) of OCI.
The DIR revised complainant's FY 1995/1996 rating, which after a
correction for an error, was reduced to 390. The DIR's memorandum
to complainant's personnel file states that the complainant should
concentrate on honing her decision memoranda writing skills. The DIR
stated in her affidavit that it was her understanding that in a career
ladder position an employee becomes eligible for a promotion after
performing at the �Fully Successful� level for one year. However, she
qualified this statement by stating that this should not be viewed as an
�anniversary date� in the sense that a promotion is �due� or �warranted�
after one year has elapsed.
The DIR, after being contacted by complainant about her promotion,
discussed the matter with PM and GL2. The DIR stated that PM's main
concern was that complainant's written work was not of a quality
to support promotion to GS-12, and that complainant did not exhibit
sufficient ability to work on her own without close supervision. The DIR
confirmed that when a new case is assigned to the office, the group
leaders decide which team will work on the case. The DIR also stated
that, during the time period of June 1995 through June 1996, she did
not recollect that the complainant ever raised concerns that complainant
was not receiving work assignments. She further stated that she had no
knowledge that PM avoided complainant and he never belittled complainant's
work in DIR's presence. The DIR did state that PM identified shortcomings
in complainant's work that led him not to recommend promotion, but that
was appropriate for this type of personnel decision. The DIR testified
that she saw no evidence that PM treated complainant differently from
the male analysts under his supervision and that he applied the same
standards to all employees in writing appraisals. She also stated that
she saw no evidence that PM ignored complainant.
PM testified in his affidavit that he had become a program manager
in 1988. PM testified that he once accommodated the complainant when
he allowed her to work on a case that she had a special interest in and
that he awarded her a small cash prize for an innovation with respect to
the setting up of a Lotus spreadsheet. PM stated that after complainant
returned from a work trip to China she was required to do �verification
reports� with respect to her findings. The PM stated that, according
to GL1, her group leader, complainant had significant difficulty in
writing a quality report in a timely fashion. PM stated that based on
his recommendation complainant was promoted to GS-11 in 1995. Although,
in the 1995 final appraisal report, he stated that complainant needed
to concentrate on her written and oral communication skills, his rating
for complainant was a �Commendable� rating. On one occasion, PM stated
that complainant was asked to rewrite a �concurrence memo� concerning the
ferrochrome cases. PM testified that complainant had problems writing a
thorough, thoughtful analytical memo. PM understood from GL2 that the
memo had to be re-drafted several times. PM stated that the drafts
were poorly organized, inadequately researched, and lacked a full,
in-depth analysis.
PM testified that work given to complainant in May 1996 involved a
substantial amount of very critical work with respect to a complicated
issue, involving review of magnesium from Canada. Complainant, for two
or three months prior to her transfer, never provided any work product
evidencing her efforts with respect to this assignment. PM testified
that based on complainant's lack of initiative, extremely low level
of productivity and difficulty in writing a through, thoughtful, well
organized analytical memo, he was not convinced that complainant could
perform at the GS-12 level. Concerning complainant's allegation that
a 1995 memo could not be rewritten, PM testified that the rewriting was
not contrary to proper practice, and it was rewritten. PM testified that
he did not deny complainant's promotion because she did not complete the
ferrochrome case, but because of her poor performance from approximately
November 1995 through May 1996 in rewriting the memo in the ferrochrome
case.
PM denied that he treated complainant differently than males under his
supervision and denied that he consistently and studiously ignored
complainant. PM stated that from June 1995 to June 1996, complaint
was assigned to the manganese metal, ferrochrome and magnesium cases.
PM stated that he did speak to complainant about her work and denied
that he belittled her work or failed to recognize her accomplishments.
PM denied that he discriminated against complainant due to her sex.
PM averred that during his time as a manager that he recommended
approximately twelve women for promotion to the GS-11, GS-12 and/or GS-13
positions. PM denied that he told complainant that she would regret
having asked to be transferred. PM stated that complainant told him
that she wanted a transfer because she wanted to do more analytical work.
After reviewing the entire record, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions, e.g., the promotion
was not automatically due, and that PM did not approve the promotion
primarily because complainant lacked initiative, had an extremely
low level of productivity and had difficulty in writing a thorough,
thoughtful, well organized analytical memo; that the PM based his
rating on his own observations and feedback from group leaders; that PM
generally did not assign cases; and that PM denied avoiding and belittling
complainant, and denied treating her differently than male analysts.
The Commission may proceed to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-14 (1983); Hernandez v. Department of Transportation,
EEOC Request No. 05900159 (June 28, 1990). Here, the burden returns to
complainant to demonstrate that the agency's reasons were a pretext for
discrimination, that is, that the agency's reasons were not true and
that the agency was more likely motivated by discriminatory reasons.
Complainant contends that the agency and PM changed their reason for
not promoting her, such as; complainant could not lead a case; that
complainant refused to do any work; that complainant was incapable of
doing work; that complainant did not do substantive work: that complainant
could not understand issues; that complainant took too long to do work;
and, complainant lacked the ability to produce a written product that
describes, analyzes and presents conclusions to problems at the GS-12
level. PM disagreed with complainant that he changed his reason for
not promoting her and disagreed with her version of events in one of
the cases. Complainant claimed that deficiencies were not noted in her
earlier reviews and that she did not receive a mid-term progress review.
PM testified that complainant told him around the time of the mid-year
review that she was getting detailed to another group and so he did not
see any reason for a mid-year evaluation. Also, PM said that he did
not do mid-year reviews for anyone in his office.
The complainant has failed to show that the agency's actions were
motivated by a discriminatory animus toward her sex or were retaliatory.
The Commission finds that the complainant has failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for sex or reprisal discrimination.
Complainant failed to present sufficient evidence that would persuade us
that the agency's reasons for its actions were in retaliation for opposing
her supervisor's alleged discriminatory treatment of her. We find that
complainant has not established that the agency's reasons were pretextual.
Accordingly, the Commission finds that the evidence supports the finding
that the agency did not engage in reprisal discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we find that complainant has failed to present
sufficient evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for sex or reprisal discrimination.
We AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_February 1, 2002
Date
1 A Career Ladder Position has been defined as a position where the
full performance level is identified and all employees in the same career
ladder are given grade building experience and employees may be promoted
(career promotions) as they demonstrate the ability and readiness to
perform at the next higher level and when legal requirements, e.g.,
time-in-grade, are met. A representative of the Career Development
Division in Personnel stated that one of the requirements for a career
ladder promotion was that the supervisor must first ensure that the
employee is capable of performing duties at the next level.
2 The Complainant's �Brief in Support of Her Appeal on the Final
Agency Decision� shows a certificate of service to the agency's Office
of Civil Rights.