01a01850
04-03-2001
Lorraine A. Masteller, Complainant, v. John Ashcroft, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Lorraine A. Masteller v. Department of Justice (Immigration and
Naturalization Service)
01A01850
04-03-01
.
Lorraine A. Masteller,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A01850
Agency No. I97-0184
DECISION
INTRODUCTION
On December 21, 1999, Lorraine A. Masteller (hereinafter referred to as
complainant) filed a timely appeal from the November 30, 1999, final
decision of the Department of Justice (Immigration and Naturalization
Service) (hereinafter referred to as the agency) 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.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the basis of sex when she received a low rating on an appraisal
form in April 1997.
BACKGROUND
Complainant filed her formal complaint on June 18, 1997. Following an
investigation, complainant was advised of her right to request a hearing
before an EEO Administrative Judge or an immediate final agency decision
(FAD).<1> By letter dated January 24, 1999, complainant requested a FAD,
which the agency subsequently issued. The agency found that it did not
discriminate against complainant, and, in addition, the agency found
that she was not subjected to harassment. Complainant has filed the
instant appeal without comment on the matter before us.<2>
At the time of the complaint herein, complainant worked as a Detention
Enforcement Officer (DEO) in Medford, Oregon, having transferred from
Baltimore, Maryland, in July 1996. On April 18, 1997, she received
a Basic Appraisal Form from her former first-line supervisor, now
her second-line supervisor (S2), which "highly recommended" her for
promotion and rated her "very good" on seven factors and "good" on the
factors of Sense of Responsibility (No. 5), Analytical Ability (No. 8),
and Adaptability (No. 9).<3> In addition, in her complaint, complainant
claimed that she was sent to a conference geared to secretaries; her
supervisors scrutinized her travel voucher claims without her knowledge;
and she was not given certain assignments.
In her investigative affidavit, complainant stated that all other
appraisals she had received rated her very good on all factors.
She pointed to a male DEO (E1) who had gotten into trouble and
not followed agency rules but was rated very good on all factors.
She asserted that her third-level supervisor (S3) forced her to attend
a conference entitled "Credibility, Composure and Confidence, A One-Day
Seminar for Working Women" that did not relate to law enforcement and
was geared to secretaries and administrative-level female employees,
while she had sought to attend "Street Survival" training, which she
was denied in favor of a less senior DEO (E2). She also stated that
male DEOs and others taunted her, they ignored her, they accused her of
having a problem communicating with men, the mechanic ignored her and
criticized the way she asked him a question, they subjected her to curse
words, they left her out of assignments, they subjected her to teasing,
and her supervisors unduly questioned her while on detail.
With regard to the appraisal, S2 explained that he rated complainant
good on No. 5 because she did not assume leadership responsibilities;
on No. 8 because of the numerous problems with her travel vouchers and
reports; and on No. 9 because he had gotten numerous complaints from
the county sheriff's office and co-workers that she was argumentative.
S2 stated that he could not recall how he had rated E1 but doubted that
E1 received a perfect rating. The record does not contain any response
from complainant to S2's comments on her performance in Nos. 5, 8, and 9,
except to generally allege gender bias.
S3 denied that he required complainant to attend the conference, and
in a memorandum to complainant prior to her attendance, he stated that
the conference was "not a mandatory class and is a training opportunity,
if you wish to attend" but that "if you do not wish to attend the class,
please notify me." He further stated that employees are afforded other
training, including the course on "Street Survival," as courses become
available, and, in accord with agency practice, the most senior employee
according to date of entry in the agency is sent and that E2, in fact,
had longer tenure with the agency than she. S2 and complainant's
first-level supervisor (S1) confirmed S3's statements and past practices
regarding assignment to training opportunities.
S2 and S1 stated that they responded to complainant's complaints about
inappropriate language and taunts and teasing remarks by counseling the
individual employees and reiterating their concerns in staff meetings.
In addition, S2 stated that he changed her partner because of her
complaints. He noted, however, that he found that some of complainant's
complaints about others were without merit or not warranted. For example,
she complained on two occasions that male DEOs picked up detainees
without her, but S2 discovered that she was either late or not ready to
leave on time. Also, her supervisors asserted that some of the matters
about which she complained were legitimate, managerial actions taken by
them, such as counseling her regarding the performance of her assigned
duties, discussing her interaction with female detainees, and reviewing
her travel vouchers. S2 and others asserted that supervisory review
of complainant's travel vouchers was necessary since vouchers must be
signed by superiors and that, in light of her past difficulties with
completing vouchers, careful examination was necessary. In addition,
S2 opined that complainant might have been overly sensitive to staff
interaction and behaviors. He noted, for example, that complainant
complained that he questioned her about her ability to handle a .40
caliber weapon, because agency trainers had advised managers that that
weapon may be too large for the hands of most females.
In late April 1997, at S3's request, complainant sent him a list of her
concerns. The record contains the exchange of e-mails that followed.
S3 asserted that he reviewed the issues raised by her communication with
her supervisors to resolve her concerns where she raised genuine matters
concerning agency policy and that appropriate action was taken, and,
where appropriate, individual staff were counseled. He stated further
that he offered her a transfer to Portland but that she declined.
ANALYSIS AND FINDINGS
Complainant has alleged disparate treatment discrimination on the basis
of sex, and, in addition, she has made a claim of harassment (hostile
work environment).
Disparate Treatment Claim
In general, claims alleging disparate treatment are generally examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). Initially, a complainant
must 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. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The agency
must rebut complainant's inference of discrimination by articulating a
legitimate, nondiscriminatory reason for its action(s). Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); see U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Finally, the burden returns to the complainant, who must persuade the
fact finder by a preponderance of the evidence that the reasons offered
by the agency were not the true reasons for its actions but rather were
a pretext or mask for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
Assuming that complainant has established a prima facie case based on sex,
we may move to the third step of the analysis. We find that the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
U.S. Postal Service Board of Governors v. Aikens, 460 U.S. at 713-14.
Specifically, as set out in detail, supra, agency managers explained the
reasons for the rating given to complainant on April 18, 1997; about
agency training opportunities and her option to refuse to attend the
one day conference for working women; how agency managers addressed her
legitimate concerns; and why the agency scrutinized her travel vouchers.
The burden now returns to complainant to demonstrate that the agency's
reasons were not its true reasons for its action but were a prextext
for discrimination, that is, that the agency's reasons were based
on prohibited considerations of sex. Other than her claims of bias,
complainant has not presented any evidence to show that the agency's
explanations were not the true reasons or were based on discriminatory
considerations or animus. We find therefore that complainant was not
subjected to disparate treatment discrimination based on sex.
Harassment Claim
Complainant's claims also allege that she was subjected to harassment.
The harassment of an employee based on his/her race, color, sex,
national origin, age, disability, or religion is unlawful, if it is
sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d 1129,
1138-1139 (D.C. Cir. 1985). To prevail on her harassment claims,
complainant must show that she was subjected to harassment because
of discriminatory factors, i.e., her sex. In assessing allegations
of harassment, the Commission examines factors such as the frequency
of the alleged discriminatory conduct, its severity, whether it is
physically threatening or humiliating, and if it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems,
Inc., 510 U.S 17 (1993). Usually, unless the conduct is severe, a
single incident or group of isolated incidents will not be regarded as
discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). See Bloomer v. Department of Transportation,
EEOC Petition No. 03980137 (October 8, 1999).
Complainant claimed that she was subjected to harassing behavior from
her supervisors and co-workers, described, supra. She complained that
her supervisors unnecessarily scrutinized her travel vouchers. Her
supervisors explained, however, that she had had past errors that required
their review, and, further, there is nothing to indicate that they were
doing more than carrying out their routine supervisory responsibilities.
Also, complainant stated that her co-workers used inappropriate language
and taunted her. She described a particular event on May 9, 1997, when
she asked a mechanic a question, and he responded to her male partner.
When she asked her partner about the mechanic's behavior, he suggested
that the mechanic ignored her because of the manner in which she had
asked her question. She then �wondered aloud if everything I said was
a problem because I am a woman,� which her partner rejected, using
an inappropriate word. (Investigation Statement, p. 4). She also
complained that male DEOs went to pick up detainees without her, but an
investigation revealed that she was either late or not ready on time.
We find that these incidents, even when taken together, do not rise to the
level of illegal harassment. Further, the record does not contain, nor
has complainant presented, evidence of a pattern of events sufficiently
severe or pervasive to affect her work performance. The record does
not reveal her supervisors or co-workers acted on the basis of her sex
and that the attribution of a sexual basis for their comments arose
with complainant. We find therefore that complainant was not subjected
to discriminatory harassment or a hostile work environment.
CONCLUSION
Accordingly, we find that the agency's decision was proper, and it
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
____04-03-01______________
Date
1In papers associated with her notice of appeal, complainant requested a
hearing; however, complainant's right to a hearing expired 30 days after
she was notified by the agency of her right to elect a hearing or a FAD.
29 C.F.R. � 1614.108(f).
2On January 22, 2000, complainant forwarded to the Commission information
regarding a Letter of Disciplinary Action dated January 3, 2000,
concerning a travel voucher submitted in December 1999. In addition,
she stated that she wished to add a new claim of retaliation to her formal
complaint. While it appears that she has contacted an EEO counselor with
regard to these new matters, complainant is advised that if she wishes
to pursue EEO claims regarding the disciplinary action or retaliation,
she must initiate contact with an EEO counselor, unless she has already
done so. For timeliness purposes, if complainant makes contact within
15 days after she receives this decision, the date complainant filed her
appeal statement in which she raised these claims shall be deemed to be
the date of the initial EEO counselor contact. Cf. Qatsha v. Department
of the Navy, EEOC Request No. 05970201 (January 16, 1998).
3In addition to an employee's annual performance evaluation, these
appraisals on Forms 610A/610, are initiated by the employee, usually
for attachment to job applications, and are valid for no longer than a
few weeks. The agency uses a three-level rating system, i.e., very good,
good, and fair, without comments, for the ten factors. In addition,
an overall statement for promotion, with an optional short comment,
is made, i.e., highly recommend, recommend, and does not recommend.
The agency does not retain copies of these appraisals.