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.