Marilyn E. Nelson, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01986142 (E.E.O.C. Feb. 4, 2000)

01986142

02-04-2000

Marilyn E. Nelson, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Marilyn E. Nelson, )

Complainant, )

) Appeal No. 01986142

v. ) Agency No. 95-0614

) Hearing No. 260-97-9072X

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

)

DECISION

INTRODUCTION

Complainant timely filed an appeal with the Commission from a final

decision of the agency concerning her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. � 2000e et seq, and Section 501 of the Rehabilitation Act of

1973, 29 U.S.C. � 791.<1> The appeal is accepted in accordance with

EEOC Order No. 960, as amended

ISSUES PRESENTED

Whether complainant was subjected to disparate treatment based on physical

disability (fibrositis), sex, and reprisal when:

Her position was not upgraded to GS-8, after an audit was conducted in

1991;

She was given a performance evaluation of �marginal� for the rating

period between December 1993 and June 1994;

Her within-grade increase (WGI) was delayed until May 1995; and

Whether complainant was subjected to a hostile work environment between

January 1993 and June 1995.

BACKGROUND

Complainant filed a complaint in which she set forth the above-referenced

claims of discrimination. The agency investigated the complaint, and

referred it to an administrative judge, who recommended a finding of

no discrimination. The agency subsequently adopted the administrative

judge's recommendation as its final decision. On appeal, complainant

contests the agency's decision on its merits.

The agency employed complainant as a GS-7 engineering technician at

its research facility in East Grand Forks, Minnesota. From 1976 until

December 1993, she had been under the authority of an administrative

supervisor (AS) and a technical supervisor (TS). In accordance with

the facility's organizational scheme, the AS would approve her leave

and complete her performance evaluations, while the TS would assign

her tasks and provide input for her appraisals as a project leader. In

December 1993, the AS retired and the TS supervised complainant in both

capacities until his own retirement in September 1994.

ANALYSIS AND FINDINGS

Disparate Treatment

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). Although this

test developed in the context of Title VII, it applies to disparate

treatment claims brought under the Rehabilitation Act where the agency

does not ostensibly rely upon complainant's disability as the reason

for its actions. Hansen v. Department of the Air Force, EEOC Appeal

No. 01920621 (September 10, 1992); Prewitt v. United States Postal

Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981).

Complainant must initially establish a prima facie case by demonstrating

that he 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).<2> 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). Where the agency establishes, as opposed

to merely articulates, legitimate and nondiscriminatory reasons for

its actions, we can dispense with the prima facie inquiry and proceed

to the ultimate stage of the analysis, i.e., whether the complainant

has proven by preponderant evidence that the agency's explanation was

a pretext for actions motivated by prohibited discriminatory animus.

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); 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). We will now examine each disparate treatment claim.

The 1991 Position Audit

In 1991, complainant asked for a desk audit of her position. Pursuant to

instructions that she received from the personnel office, complainant

prepared a position description, with the assistance of the AS and the TS.

A specialist from the agency's personnel office in Greenbelt, Maryland,

conducted the audit. She interviewed complainant, the AS, and the TS.

At the conclusion of the interviews, the auditor prepared a final report

indicating that complainant's position should remain classified at the

GS-7 level. Complainant testified that the TS misled the auditor into

minimizing the significance of her work. Complainant neither appealed the

classification nor did she subsequently request another audit, however.

She has not presented any documents or testimony tending to show that

either the AS or the TS improperly tried to influence the outcome of

the audit. Consequently, we find no reprisal in connection with the 1991

position audit.

The 1994 Performance Evaluation

In July 1994, the AS issued complainant an overall performance rating of

�marginal� for the period between December 1993, and June 1994. The AS

testified that he recommended the marginal rating because complainant

did not meet the standard for fully successful performance in the

fifth element of her performance plan - documentation. Pursuant to

this element, complainant was required to enter data and notes in

an official notebook, and to do so in an orderly and legible manner.

The documentation requirement was part of an agency policy related to the

publication of reports for outside constituencies. The TS indicated that

on at least fifteen occasions during the rating period, complainant either

failed to log entries or logged entries that were so lacking in detail as

to be meaningless. The TS also indicated that he had to repeatedly remind

complainant to more consistently and thoroughly document her research.

The AS concurred with the TS's recommendation. The hearing testimony of

the TS is supported by his contemporaneously prepared notes documenting

those instances in which complainant's entries in the official lab

notebook were improper. Complainant has not presented any evidence,

apart from her own testimony, which contradicts the testimony of the TS

or undermines his credibility as a witness.

The 1994 WGI Delay

Complainant was due to receive her WGI on August 21, 1994. She did

not receive it until May 1995, however. Two factors contributed to

the delay. Memoranda from a personnel specialist indicated that, due to

the extensive time that complainant was on leave without pay during the

rating period, her eligibility date for the 1994 WGI was moved back to

September 4, 1994. The second factor was her marginal performance rating.

The agency's personnel directive indicates that WGI's generally go

into effect automatically, unless the employee is not performing at

an acceptable level. A WGI record form was generated by the personnel

office and sent to the facility. When he filled out complainant's WGI

record form, the TS marked the box indicating that complainant was not

performing at an acceptable level. He testified that he did so because

of complainant's marginal rating for the period ending June 15, 1994.

He then provided the form to the AS, who reviewed it, signed it, and

returned it to the personnel office. The TS's actions were consistent

with the policies and procedures prescribed in the personnel directive.

As with her other allegations, we find that complainant has not met her

burden of proof that her WGI was delayed because of her gender.

Reprisal

Complainant may establish a prima facie case of reprisal by showing:

(1) that she engaged in protected EEO activity; (2) that the officials

identified in her complaint knew of her activity; and (3) 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. Hochstadt

v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318

(D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976); Frye v. Department of

Labor, EEOC Request No. 05940764 (December 15, 1994). We find that

complainant satisfied the first and second parts of the prima facie

case, but not the third. Complainant's only previous EEO complaint

occurred in 1979, when she alleged that she was receiving lower pay than

males who were doing the same work as she. Her complaint was settled,

and she was promoted two grade levels. Both the AS and the TS admitted

that they were aware of complainant's prior complaint, in that they were

both involved in the hiring of the male employees that complainant cited

as comparatives. Neither official was named in the prior complaint or

was directly involved in it. There is a twelve-year time gap between

her previous EEO complaint and the audit of her position in 1991, and a

fifteen-year time gap between that complaint and the marginal performance

evaluation and WGI delay in 1994. This lengthy passage of time severely

weakens any inference of retaliatory motivation on the part of the AS or

the TS. Complainant has not presented any documents or testimony, apart

from her own, which tends to strengthen that inference. We therefore

find that complainant has not established a prima facie case of reprisal

in connection with any of her allegations of disparate treatment.

Harassment

The harassment of an employee that would not occur but for the

employee's race, color, sex, national origin, age, disability, or

religion is unlawful if it is sufficiently patterned or pervasive. Frye

v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);

deLange v. Department of State, EEOC Request No. 05940405 (March 3, 1995).

Complainant alleged that the TS harassed her by, inter alia, maintaining

detailed logs on her activities and closely monitoring her time and

attendance records. The TS testified that he had worked with complainant

since 1974, and that, for most of that time, their relationship could

be characterized as �adversarial.� He testified that he was her direct

first-line supervisor from the time she was hired in 1974 until 1976,

when a facility-wide reorganization took place. As a result of that

reorganization, the TS became a project engineer and team leader, while

the AS became complainant's nominal supervisor. The TS testified that

their relationship remained cordial until 1977, when complainant first

began to raise the issue of her position classification, and that the

relationship deteriorated after that. The TS further testified that

he maintained time logs on activities and projects, but stated without

contradiction that those logs included everyone, not just complainant.

When asked at the hearing why he monitored complainant's time and

attendance so closely, he replied that, as a team leader, he was being

held accountable by his own supervisor for the time spent on projects

by subordinates. When asked whether he had problems with complainant

because she is a woman, he replied that he did not, and mentioned that he

had no problems with the work of another female engineering technician.

As previously noted, he did not consider complainant to be disabled or

incapable of carrying out her responsibilities. Thus, complainant has

not established that any of the actions of the TS rose to the level of

discriminatory harassment.

CONCLUSION

After a review of the record in its entirety, including consideration

of the administrative judge's recommended decision and all statements

submitted on appeal, it is the decision of the Equal Employment

Opportunity Commission to AFFIRM the agency's final decision because

the preponderance of the evidence of record 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:

Feb. 4, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

__________________________1On 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.

2For the purposes of this analysis, we will assume that complainant has

a disability within the meaning of the Rehabilitation Act.