Maryellen Reninger, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01980788 (E.E.O.C. Mar. 9, 2000)

01980788

03-09-2000

Maryellen Reninger, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Maryellen Reninger v. Department of the Treasury

01980788

March 9, 2000

Maryellen Reninger, )

Complainant, )

) Appeal No. 01980788

v. ) Agency Nos. 97-1044

) 97-1208

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaints of unlawful employment discrimination on the

bases of sex (female) and reprisal in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> In her

first complaint, complainant alleges that she was discriminated against

based on her sex on September 24, 1996, when she was assigned support

and clerical duties, and that she was retaliated against for her prior

EEO activity when: (1) on October 25, 1996, management requested that

she have her doctor sign the back of her leave slip; (2) on October 31,

1996, management denied her request to change her flex day from November

4, 1996 to November 5, 1996; and (3) on November 7, 1996, she was not

awarded for her efforts in the Director's Town Hall meeting. In her

second complaint, complainant alleges that she was further retaliated

against when: (1) beginning in October 1996, management stopped assigning

her green folders for the Director's signature; (2) in December 1996,

management stopped designating her for acting assignments; and (3) in

December 1996, management began making copies of her corrected work.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission AFFIRMS the agency's decision.

The record reveals that during the relevant time, complainant was employed

as a Writer/Editor, GS-1802-11, at the agency's Correspondence Unit of

the Office of Liaison and Public Information (LPI) in Washington, DC.

The record indicates that in July 1996, at management's suggestion,

complainant sought medical attention for a possible sleep disorder which

may have caused her to fall asleep at work. The record also indicates

that on September 24, 1996, the Chief of LPI held a meeting with the

office support staff and all members of the Correspondence Unit, in order

to announce that two support employees were being detailed into different

positions, and that she had changed her secretary's working hours.

Because of the resulting shortage of support staff available to cover

window and telephone duties from 4:30 to 5:30 p.m. daily, the Chief

indicated that complainant would cover the window and phones for that

one hour time slot until a new student assistant was hired. The record

shows that the Correspondence Unit was comprised of all females.

Complainant stated that she was not the only employee in the office

available during the 4:30 to 5:30 time period, and that the Chief

lied about the availability of male employees in order to require her

to perform the support and clerical duties. According to complainant,

there were male employees available at that time slot, but because she was

female, the Chief saw her as someone who should perform support duties.

With respect to the Chief's request that she obtain her doctor's signature

on her leave slip, complainant stated that the Chief did not require

other employees to have their leave slips signed by a doctor, and that

it was only after she initiated the EEO process that the Chief imposed

that requirement on her. Complainant further stated that the signature

requirement violated agency policy regarding documentation to support

sick leave. Concerning management not allowing her to change her flex

day, complainant asserted that the Chief granted twenty-five hours of

advanced annual leave to another employee the same week that she denied

her request to switch her flex day. With respect to not being awarded

for her efforts in the Director's Town Hall meeting, complainant stated

that one of the other employees in the office did less work at the Town

Hall meeting and was still rewarded with a spot award. Additionally,

complainant stated that she performed additional duties not initially

assigned to her. Regarding management's purported discontinuance of

green folder (requiring the Director's signature) distribution to her,

complainant declared that the team leader was giving her only manilla

folders (used for the general public) until she mentioned it to a

co-worker (CW) in December 1996. Concerning management's refusal to

provide her with acting assignments, complainant maintained that acting

assignments had been rotated previously. And with respect to management

purportedly making copies of her work, complainant stated that she feared

that the team leader was keeping copies of any changes to her work,

and not CW's, so that it could be later used against her.

The Chief stated that the members of the Correspondence Unit routinely

provided coverage for the Public Affairs Assistant position when the

assistant was not present. She further stated that complainant was

the only employee in the unit who was regularly scheduled to work from

4:30 to 5:30 p.m., and therefore complainant was assigned those duties

during that time period. She declared that, although there were other

male employees in the office at that time, they were not members of the

Correspondence Unit; they had different job responsibilities; and they

were higher graded employees than complainant. The Chief asserted that

other members of the Correspondence Unit were assigned to cover lunch and

break times. The Chief maintained that the assignment was made solely

based on the needs of the office, and that complainant's sex was not

a consideration. Concerning complainant's leave slip, the Chief stated

that complainant signed a release of medical information, which was sent

to complainant's physician along with a letter requesting certain details

about complainant's condition in order to determine whether the sleeping

incidents should be handled as a medical issue or a misconduct issue.

She further stated that no response was received from the doctor,

and that complainant has not offered any additional information about

her condition. The Chief stated that she consulted with Employee Labor

Relations, who instructed her to require that any leave related to these

sleeping occurrences be certified as such by complainant's physician.

Regarding the request for a change in complainant's flex day, the

Chief stated that she refused because the day complainant wanted to

use as her flex day, November 5th, was the day immediately prior to the

Director's Town Hall meeting. The Chief maintained that complainant had

been assigned duties which she was responsible for performing on that

date, and therefore she did not allow complainant to switch the days.

The Chief further stated that when complainant submitted a request for

annual leave for November 5th, she approved it. With respect to the spot

awards for the Town Hall meeting, the Chief indicated that complainant was

not granted an award because she was not present for the two days prior to

the meeting when most of the preparations occurred. The Chief stated that

the awards were presented as recognition for the team's preparation and

coordination efforts in the days leading up to the meeting, while still

performing their regular duties. She further stated that as a result

of complainant's absence immediately before the meeting, complainant's

designated responsibilities had to be reassigned to other staff members.

Furthermore, the Chief acknowledged that while complainant did assist

with the meeting on November 6th, her "minimal" assistance did not warrant

an award. Concerning the green folder distribution, the Chief indicated

that complainant was still receiving them as part of her routine work

assignments. Regarding acting assignments, the Chief maintained that,

based on an employee's performance in these assignments, she identified

those best capable of performing the acting team leader duties, and made

her designations based on those observations. She further maintained that

complainant will be given acting assignments when other team members who

have proven themselves more reliable in that capacity are unavailable.

Finally, the Chief indicated that she was first notified of complainant's

EEO activity on January 13, 1997.

While the Chief stated that she was first notified of complainant's

EEO activity on January 13, 1997, the record reflects that the team

leader overheard discussion regarding a meeting between complainant,

the Chief and an "EEO person," but could not recall when it occurred.

An electronic mail message in the record shows that a member of the EEO

staff at the agency's headquarters scheduled a meeting with complainant

and the Chief for October 2, 1996. Later messages show that complainant

requested alternative dispute be attempted, but that the Chief would

not participate.

Concerning the copying of work, CW stated that it is normal office

procedure for copies to be made of corrected work, and that a file of

each employee's work is maintained by the team leader for later use in

preparing evaluations. CW further stated that while she was acting team

leader, she made copies of complainant's work as well.

Complainant sought EEO counseling and subsequently filed a formal

complaint on November 6, 1996, and on May 1, 1997. The complaints

were accepted for processing and were consolidated for investigation.

At the completion of investigation, complainant was provided with the

opportunity to request either a hearing before an EEOC Administrative

Judge or a FAD without a hearing. Complainant requested a FAD, which

was issued on September 17, 1997.

The FAD concluded that complainant failed to establish a prima facie

case of sex discrimination because: (1) she presented no evidence that

similarly situated individuals not in her protected class were treated

differently under similar circumstances; and (2) she was not "adversely

affected" when she was required to perform telephone and window duties for

a short period of time each day for several months. With the exception of

two other claims, the FAD concluded that complainant established a prima

facie case of reprisal discrimination when she demonstrated that she was

subjected to adverse employment decisions which occurred shortly after her

commencement of the EEO process on September 26, 1996. Regarding the two

claims involving green folder distribution and management making copies

of complainant's work, the FAD concluded that complainant has provided no

evidence to show that management had stopped giving her green folders,

or that the copying of her work has amounted to any negative impact

on complainant. In fact, the agency asserted that, with respect to

these two claims, complainant simply has not shown that she has been

subjected to "adverse" treatment - an element crucial in establishing

a prima facie case of reprisal discrimination. The FAD then concluded

that the agency, primarily its Chief of LPI, articulated legitimate,

nondiscriminatory reasons for its actions, and that complainant did not

establish that more likely than not, the agency's articulated reasons

were a pretext to mask unlawful discrimination or retaliation.

ANALYSIS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). Complainant has the initial burden of

establishing a prima facie case of discrimination. McDonnell Douglas,

411 U.S. at 802. If complainant meets this burden, then the burden shifts

to the agency to articulate some legitimate, nondiscriminatory reason for

its challenged action. Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). Complainant must then prove, by a preponderance

of the evidence, that the legitimate reason articulated by the agency

was not its true reason, but was pretext for discrimination. Id. at 256.

I. Prima Facie Cases

Disparate Treatment

Complainant can establish a prima facie case of sex discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,

411 U.S. at 802). In general, to establish a prima facie case

of discrimination based on a Title VII disparate treatment claim,

complainant must show that she belongs to a statutorily protected

class and that she was accorded treatment different from that accorded

persons otherwise similarly situated who are not members of the class.

Comer v. Federal Deposit Insurance Corporation, Request No. 05940649

(May 31, 1996)(citing Potter v. Goodwill Industries of Cleveland, 518

F.2d 864, 865 (6th Cir. 1975)). In order for two or more employees to be

considered similarly situated for the purpose of creating an inference

of disparate treatment, complainant must show that all of the relevant

aspects of her employment situation are nearly identical to those of

the comparative employees whom she alleges were treated differently.

Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).

Here the record shows that complainant is a member of a protected group:

female. However the Commission finds that complainant has not established

that other employees not of her protected group were treated differently

under similar circumstances. Complainant cited males in the office for

comparison. The record clearly indicates that, although there were other

male employees in the office at that time, they were not members of the

Correspondence Unit; they had different job responsibilities; and they

were higher graded employees than complainant. Thus, the Commission finds

that all of the relevant aspects of complainant's employment situation

are not nearly identical to those of the comparative employees whom she

alleges were treated differently. In the absence of any other evidence

from which to infer a discriminatory motive, the Commission finds that

complainant has not established a prima facie case of sex discrimination.

Reprisal

In a reprisal claim, complainant may establish a prima facie case

of reprisal by showing that: (1) she engaged in protected activity;

(2) the agency was aware of her protected activity; (3) subsequently,

she was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse action. McDonnell

Douglas; Hochstadt v. Worcester Foundation for Experimental Biology,

425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997). We note that a nexus or causal relationship between

her prior protected EEO activity and the later agency action may be shown

by evidence that the adverse action followed the protected activity within

such a period of time and in such a manner that a reprisal motive can he

inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).

Generally, the Commission has held that such a nexus may be established

if the protected EEO activity and the later adverse events occurred

within one year of each other. Patton v. Department of the Navy, EEOC

Request No. 05950124 (June 26, 1996).

Regarding the two allegations involving green folder distribution

and management making copies of complainant's work, the record shows

that complainant engaged in protected activity on September 26, 1996;

that an agency official, particularly the Chief, was obviously aware of

her prior EEO activity; and that a nexus exists between her prior EEO

activity on September 26th, and the current incidents occurring from

October 1996 through December 1996. However, we find that complainant

has failed to show that she was subjected to adverse treatment regarding

these claims. The Commission has stated that adverse actions need not

qualify as "ultimate employment actions" or materially affect the terms

and conditions of employment to constitute retaliation. EEOC Compliance

Manual, No. 915.003 (May 20, 1998). Instead, the statutory retaliation

clauses prohibit any adverse treatment that is based upon a retaliatory

motive and is reasonably likely to deter the charging party or others

from engaging in protected activity. Id. Here, complainant has provided

no evidence to show that management did stop giving her green folders,

or that copies of her work have amounted to having any negative impact

on complainant. Thus, complainant cannot establish a prima facie case

of reprisal discrimination, based upon these two claims.

Concerning the remaining four claims, the record clearly shows that

complainant engaged in protected activity on September 26, 1996; that

an agency official, particularly the Chief, was obviously aware of

her prior EEO activity; and that a nexus exists between her prior EEO

activity on September 26th, and the current incidents occurring from

October 1996 through December 1996. Furthermore, the record clearly

shows that complainant was subjected to adverse treatment by the agency

when management requested that she have her doctor sign the back of

her leave slip; denied her request to change her flex day; failed to

reward her for her efforts in the Director's Town Hall meeting; and

stopped designating her for acting assignments. Therefore, complainant

has established a prima facie case of reprisal discrimination.

II. Legitimate, Nondiscriminatory Reason

After complainant establishes a prima facie case of discrimination,

the burden now shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253.

The agency Chief of LPI stated that the members of the Correspondence Unit

routinely provided coverage for the Public Affairs Assistant position when

the assistant was not present. She further stated that complainant was

the only employee in the unit who was regularly scheduled to work from

4:30 to 5:30 p.m., and therefore complainant was assigned those duties

during that time period. She declared that, although there were other

male employees in the office at that time, they were not members of the

Correspondence Unit; they had different job responsibilities; and they

were higher graded employees than complainant. The Chief asserted that

other members of the Correspondence Unit were assigned to cover lunch and

break times. The Chief maintained that the assignment was made solely

based on the needs of the office, and that complainant's sex was not

a consideration. Concerning complainant's leave slip, the Chief stated

that complainant signed a release of medical information, which was sent

to complainant's physician along with a letter requesting certain details

about complainant's condition in order to determine whether the sleeping

incidents should be handled as a medical issue or a misconduct issue.

She further stated that no response was received from the doctor,

and that complainant has not offered any additional information about

her condition. The Chief stated that she consulted with Employee Labor

Relations, who instructed her to require that any leave related to these

sleeping occurrences be certified as such by complainant's physician.

Regarding the request for a change in complainant's flex day, the

Chief stated that she refused because the day complainant wanted to

use as her flex day, November 5th, was the day immediately prior to the

Director's Town Hall meeting. The Chief maintained that complainant had

been assigned duties which she was responsible for performing on that

date, and therefore she did not allow complainant to switch the days.

The Chief further stated that when complainant submitted a request for

annual leave for November 5th, she approved it. With respect to the spot

awards for the Town Hall meeting, the Chief indicated that complainant was

not granted an award because she was not present for the two days prior to

the meeting when most of the preparations occurred. The Chief stated that

the awards were presented as recognition for the team's preparation and

coordination efforts in the days leading up to the meeting, while still

performing their regular duties. She further stated that as a result

of complainant's absence immediately before the meeting, complainant's

designated responsibilities had to be reassigned to other staff members.

Furthermore, the Chief acknowledged that while complainant did assist

with the meeting on November 6th, her "minimal" assistance did not warrant

an award. Concerning the green folder distribution, the Chief indicated

that complainant was still receiving them as part of her routine work

assignments. Regarding acting assignments, the Chief maintained that,

based on an employee's performance in these assignments, she identified

those best capable of performing the acting team leader duties, and made

her designations based on those observations. She further maintained that

complainant will be given acting assignments when other team members who

have proven themselves more reliable in that capacity are unavailable.

The Commission finds that the agency has articulated legitimate,

nondiscriminatory reasons explaining its various actions.

III. Pretext for Discrimination

Because the agency has articulated legitimate, nondiscriminatory reasons

for its actions, complainant now bears the burden of establishing that the

agency's articulated reason is a pretext for discrimination. Shapiro,

supra. Complainant can do this by showing that a discriminatory reason

motivated the agency. Id. (citing St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993). The Commission has held:

Disbelief of the agency's articulated reasons does not compel a

finding of discrimination as a matter of law. However, disbelief

of the reasons put forward by the agency, together with the

elements of the prima facie case, may suffice to show intentional

discrimination.

Jones v. Department of Veterans Affairs, EEOC Request No. 05940013

(Nov. 2, 1995) (citing St. Mary's Honor Center, 113 S.Ct. at 2749)

(other citations omitted).

After a thorough review of all the evidence of record, the Commission

finds that complainant has failed to meet her burden of establishing, by

a preponderance of the evidence, that the agency's various reasons for its

actions were a pretext masking discrimination. While the record indicates

that the Chief was apparently aware of complainant's EEO activity before

January 13, 1997, the Chief has articulated legitimate, nondiscriminatory

reasons explaining her various actions. There is no credible evidence to

demonstrate that the agency's actions in this situation were rooted in

retaliatory animus. Thus, the Commission finds that complainant failed

to present evidence that more likely than not, the agency's articulated

reason for its actions were a pretext for discrimination.

Therefore, after a careful review of the record, and arguments and

evidence not specifically addressed in this decision, we AFFIRM the

agency's decision.

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:

March 9, 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

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.