01985741_01996981
03-13-2000
Linda L. Klamm, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Linda L. Klamm, )
Complainant, )
) Appeal Nos. 01985741
v. ) 01996981
) Agency Nos. 97-0793
Togo D. West, Jr., ) 96-2122
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely appealed the agency's final decision on
Complaint No. 97-0793, concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> She also appealed the agency's
final decision on Complaint No. 96-2122, concerning her claim that the
agency breached a settlement agreement. The Commission accepts these
appeals.
ISSUES PRESENTED
Whether the agency breached a settlement agreement between itself and
complainant, discriminated against complainant on the bases of gender
and prior EEO activity, and subjected complainant to discriminatory
harassment when, on May 10, 1996, complainant's second-line supervisor
(S2) informed her that her annual performance appraisal would be delayed,
pending a challenge by her previous supervisor regarding two adjudications
that she had prepared;
Whether S2 discriminated against complainant on the bases of her gender
and prior EEO complaints by not selecting her for a supervisory claims
examiner position on August 13, 1996; and
Whether the selectee for the supervisory claims examiner position, in his
capacity as complainant's new first-line supervisor (S1), discriminated
against complainant on the bases of her gender and prior EEO complaints
by assigning her training duties to another employee and removing her from
her position as the chairperson of a rating board on August 28, 1996.
BACKGROUND
The agency employed complainant as a GS-12 claims examiner in the
adjudication division of its regional office in San Diego, California.
In 1995 and 1996, she filed three EEO complaints including the two
referenced above. In Complaint No. 96-2122, filed on November 9, 1995,
she alleged that the agency discriminated against her on the basis
of gender in connection with her work assignments and the conditions
of her employment. In that complaint, she identified her previous
first-level supervisor, under whom she served from 1991 to November 1995.
On April 3, 1996, the parties entered into a settlement, pursuant to
which the agency agreed to remove complainant's prior supervisor from
overall administrative and interpretive review and control of all of
complainant's rating decisions, direct all requests for information
regarding performance-related reviews to her current supervisor, and
consider complainant for opportunities for increased responsibility and
authority upon her request.
On May 10, 1996, S2 advised complainant that her performance appraisal
for the 1995-96 rating period would be held up for central office review
because her previous first-line supervisor had found errors in two of
her decisions. S2 also indicated that a central office decision on this
matter would determine whether complainant would receive a performance
rating of outstanding or fully successful. In actuality, however, there
was no delay. Complainant received a performance rating of outstanding
on June 4, 1996.
On May 14, 1996, complainant wrote a letter to the agency's EEO office,
alleging that the agency breached the settlement agreement. The agency
issued a decision in November 1996, finding no breach. Complainant
appealed that decision, and in Klamm v. Department of Veterans Affairs,
EEOC Appeal No. 01971792 (March 22, 1999), the Commission remanded the
matter for a supplemental investigation. Pursuant to the Commission's
order, the agency produced a letter from S2 to the central office,
which indicated that complainant's previous supervisor reviewed the two
decisions in question in February 1996, two months before the settlement
agreement was signed. The agency also produced a copy of complainant's
1995-96 performance evaluation, dated June 4, 1996, in which she was
awarded a rating of outstanding. On the basis of this information,
the agency issued a second final decision on July 15, 1999, in which it
reaffirmed its earlier conclusion that there had been no breach.
The prior supervisor's position remained unfilled between November 1995
and August 1996. In July 1996, the agency issued a vacancy announcement
advertising the position. Four candidates, including complainant and
S1 applied. S2 and two other managers served on the selection panel,
and S2 served as the selecting official. The interview questions
were distributed to the applicants in advance of the interview. After
conducting the interviews and evaluating the candidates based on their
responses to the interview questions, the selection panel unanimously
recommended S1 for the job. On August 13, 1996, complainant was notified
that she had been considered for the position, but not selected. S1 was
now complainant's first-line supervisor.
On August 28, 1996, S1 issued a memorandum in which he set forth his plans
for reorganizing the rating board section. Prior to the reorganization,
complainant had served as the chairperson of a rating board, and had
also done extensive training. Pursuant to the reorganization, S1 had
removed complainant from her board chair, and had also reassigned her
training function to a hearing officer.
Complainant filed Complaint No. 97-0793 in November 1996, setting forth
the claims referenced above. The agency investigated the complaint
and notified complainant of her right to request a hearing before an
administrative judge. Complainant did not submit a hearing request, and
consequently, the agency issued its final decision of no discrimination.
ANALYSIS AND FINDINGS
At the outset, we note complainant's contention on appeal that the
investigator failed to fully investigate her complaint. Contrary to
complainant, we find that the record in both appeals is sufficient to
support a ruling. We will now address the merits of her claim.
S2's Remark Regarding Delay in Complainant's Performance Appraisal -
May 10, 1996
We first address complainant's breach-of-settlement allegation.
The April 1996 settlement agreement is a contract between complainant
and the agency, and it is the intent of the parties as expressed in
the contract, and not some unexpressed intention, that controls the
contract's construction. Eggleston v. Department of Veterans Affairs,
EEOC Request No. 05900795 (August 23, 1990). In interpreting settlement
agreements, the Commission has applied the contract principle known as
the "plain meaning rule" which holds that where a writing is unambiguous
on its face, its meaning is determined from the four corners of the
instrument without resort to extrinsic evidence. Klein v. Department
of Housing and Urban Development, EEOC Request No. 05940033 (June 30,
1994); Brown v. Department of Commerce, EEOC Request No. 05921059 (June
24, 1993). The operative term of the settlement agreement required that
complainant's previous supervisor not have any input into reviewing her
rating decisions. The two decisions that complainant's prior supervisor
challenged came up for quality review in February 1996, two months
before the settlement agreement went into effect. At the time, the prior
supervisor still had responsibility for conducting the quality review.
Complainant has not presented any evidence that her previous supervisor
performed any independent reviews of her work at any time after April 3,
1996, when the settlement agreement was signed. We therefore agree with
the agency that it did not breach the settlement agreement. We now
turn to complainant's contention that S2's conduct on May 10, 1996,
constituted discrimination.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation
is pretextual. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995).
Proof of a prima facie case will vary depending on the facts of
the particular case. McDonnell Douglas, 411 U.S. at 804 n.14.
Where employment terms are at issue, complainant may establish a prima
facie case by demonstrating that she belongs to a statutorily protected
class, and that she was treated differently than employees outside
of her protected group with respect to a term, condition, privilege,
or benefit of her employment. See Orr v. Tennessee Valley Authority,
EEOC Request No. 05930311 (March 11, 1994); Thompkins v. Morris Brown
College, 752 F.2d 558, 562 n.7 (11th Cir. 1985). Where reprisal is at
issue, complainant may establish a prima facie case by showing that she
engaged in protected EEO activity, that individuals named in complaint
knew of that activity, and that she was subjected to an adverse action
at such a time or in such a manner as to support a causal connection
between the two events. Frye v. Department of Labor, EEOC Request
No. 05940764 (December 15, 1994); Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318 (D. Mass), aff'd, 545 F.2d 222
(1st Cir. 1976). Both types of prima facie case require complainant to
show that she suffered a loss or harm in connection with any aspect of her
employment. She has not met this minimal burden. S2 was merely putting
complainant on notice that there might be a problem in getting her 1995-96
performance evaluation issued on time, because of the quality review.
Exhibit (Ex.) B6c Complainant nevertheless received a performance rating
of outstanding, and she received it in a timely manner. We therefore
find that complainant failed to establish a prima facie case of sex
discrimination or reprisal in connection with S2's notice regarding a
delay in her 1995-96 performance appraisal.
Complainant further contends that S2 told her about a delay in her
appraisal in order to harass her. Unless the conduct complained of is
severe, however, a single incident or group of isolated incidents will not
be regarded as discriminatory harassment. Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996); Frye v. Department
of Labor, EEOC Request No. 05950152 (February 8, 1996); Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). The remark at issue
is not a racial slur, nor can it be perceived by a reasonable person
as being derogatory toward individuals belonging to particular groups.
Accordingly, we find that S2's remark concerning a delay in complainant's
performance appraisal does not constitute harassment.
S2's Failure to Promote Complainant - August 13, 1996
Where promotion is at issue, complainant may establish a prima facie case
of discrimination with a showing that she is a member of a protected
group, that she applied for a position for which she was qualified,
that she was not selected, and that the selectee was outside of her
protected group. Silva v. United States Postal Service, EEOC Request
No. 05931164 (May 12, 1994); Keyes v. Secretary of the Navy, 853 F.2d
1016, 1023 (1st Cir. 1988). Complainant applied for a supervisory
claims examiner position, but S2, the selecting official, chose S1,
a male applicant. This is sufficient to establish a prima facie case.
S2 stated that, while complainant was well-qualified for the position,
the selectee was the better candidate. We find that S2's stated reason
for choosing S1 is legitimate, nondiscriminatory, and fully supported
by the record. It is against this backdrop that complainant must now
show that this reason is a pretext for sex discrimination and reprisal.
The 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. On appeal, complainant contends
that the selection decision was so flawed as to plainly reflect a
discriminatory or retaliatory animus on the part of S2. The evidence
of record does not support this contention, however. That evidence
establishes that S1 had a law degree, whereas complainant did not.
The record also shows that S1's individual productivity as a journeyman
claims examiner exceeded complainant's by a substantial margin. The
affidavits of the other rating panel members appear to corroborate S2's
assessment, in that the entire panel unanimously recommended S1. Exs.
B6-B8. Although complainant has shown that she was highly qualified for
the position, she has not shown that her qualifications were so plainly
superior to S1's as to compel a finding of pretext. Wasser v. Department
of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981).
S1's Reorganization of the Rating Board Section - August 28, 1996
S1, as complainant's first-line supervisor, stated that, pursuant to
a reorganization, the training function was transferred to the hearing
officer, which was the highest decision-making authority in the regional
office. The move was designed to establish consistency in training.
Since the agency has established legitimate, nondiscriminatory reasons
for its conduct, we can proceed to the pretext inquiry. United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). S1 stated that the regional office was reorganized
to improve quality and productivity, and to insure adherence to a liberal
rating policy. He stated that having the hearing officer provide the
training, as opposed to lower-level claims examiners, would ensure a
much higher level of consistency in rating decisions, given the hearing
officer's higher position in the regional office hierarchy. Ex. B9b.
Complainant has not presented evidence that contradicts the testimony of
S1. Consequently, she has not established that the agency's stated reason
for reassigning her training duties was a pretext for discrimination or
reprisal.
Regarding S1's decision to rotate complainant out of her board chair,
complainant clearly established a prima facie case, since S1 appointed
a male claims examiner with less experience to serve as a board chair.
S1 stated that he had personally trained the chair appointee, and that the
appointee had already mentored the three people who would be serving on
that particular board. S1 also stated, again without contradiction, that
complainant had been spending too much time on special projects, training,
and administrative duties rather than claims adjudication. He reiterated
that complainant's removal from the rating board chair was not a matter of
discipline or poor performance on complainant's part. Rather, it was done
in order to maximize the productivity of the unit that he supervised.
Ex. B9b. Although complainant contends on appeal, that the decision
was motivated by discrimination and reprisal, she has not presented any
evidence from which to infer that S1's explanation was pretextual.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final decision because the preponderance
of the evidence does not establish that discrimination occurred.
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:
03-13-00
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
________________________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.