01A11276
06-12-2002
Rosalie A. Coats, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Rosalie A. Coats v. Department of the Treasury
01A11276
June 12, 2002
.
Rosalie A. Coats,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01A11276
Agency No. 99-4294
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant
was employed as a Lead Customer Service Representative, GS-9, at
the agency's Adjustment Correspondence Branch, Overland Park, Kansas
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on July 27, 1999, alleging that she was discriminated
against on the bases of sex (female), race (White), and reprisal (prior
EEO activity) when:
(1) After becoming Workleader, she was subjected to a hostile work
environment based on sex (female) and race (White) when her Manager
and co-workers were abusive towards her, her Manager did not support
her by taking action against employees arriving late to work, and she
had to perform her own work and that of her Manager.
The agency reassigned her from her Workleader position on June 7,
1999, after she sought EEO counseling in retaliation for her previous
participation in the EEO complaints process.
Complainant testified that the atmosphere in the unit deteriorated after
a new Manager (M) (African-American, female) was assigned and complainant
was promoted to the Workleader position. Further, complainant testified
that M had informed complainant that she was �not a popular choice�
for the Workleader position. Complainant testified that a co-worker
(CW1) (White, female) allegedly threatened violence; used profanity
when complainant gave her work assignments; and often swore at her.
Another co-worker (CW2) (White, female) allegedly pitched a fit when
complainant was selected. Complainant stated that she brought to M's
attention CW1's actions; other workers' poor performance; employees not
reporting their time correctly; employees improperly claiming credit hours
or overtime; and employees having breaks at their desks and then leaving
to take a break. Complainant alleged that M did not want to deal with the
situation and was busy selling clothes from her desk. Complainant also
claimed that she had to do M's work resolving errors, monitoring calls
within the unit, tracking the inventory, and reviewing M's e-mails.
Complainant also alleged that she brought some problems to the Chief of
Adjustments Correspondence Branch (Chief). Complainant alleged that no
action was taken to correct the problems that she had raised.
The M testified that after returning from a detail she started to receive
negative feedback from three employees (White, females) concerning
complainant's performance. Concerning duty hours and time of arrival
and departure of employees, M stated that she was working with four
employees (two African American, females and two White, females) who
had child or elder parent care needs. M testified that when complainant
advised her of verbal harassment by CW1, she confronted CW1, who denied
the allegation, but M counseled CW1 anyway. M testified that she had
heard CW1 use inappropriate language but it was never directed at anyone.
M stated that, in her absence, complainant was to perform her duties; that
complainant did additional work to keep up her skills; and that she did
not assign complainant to handle her e-mails. Also, that the allegation
concerning selling clothes was false, except for one occasion when she
had brought in four small purses her sister was selling for a church.
CW1 testified that when complainant was detailed to M's position,
complainant was aggressive and seemed to overstep her authority.
She indicated that the unit was frustrated with complainant because of
her inability to perform the duties of a workleader. CW1 denied making
obscene statements to or physically threatening complainant, although
she admitted that M talked to her about foul language and loud talking.
CW2 testified that M was a good manager; never discriminated in the
unit, and treated all employees equally. CW2 testified that she had
no reservations about complainant being selected as the Workleader;
however, she stated that complainant would vent frustrations in the
office concerning other people; and that complainant resented it when
CW2 helped other people. CW2 testified that she did not hear any threats
against complainant by CW1.
Another co-worker testified that she had never heard CW1 threaten or
swear at complainant. This co-worker testified that she filed an EEO
complainant against complainant because complainant took some work away
from her. Another co-worker testified that complainant was on a �power
trip� and talked down to her. She also stated that complainant treated
her like a child and was curt with her and other employees. She also
testified that the unit was not a hostile work environment and she has
never witnessed anyone in the unit threatening or yelling at complainant.
The Team Leader (TL) (White, female) testified that she had selected
complainant for the Work- leader position, and did not receive any
feedback that complainant was not a popular choice. TL stated that
she tried to facilitate some problems between complainant and M, and
basically believed that they were not communicating with each other.
TL also testified that M was performing a lot of complainant's duties.
Concerning CW1 and CW2, TL testified that they have a �reputation� and
managers do not want to take them on.
Concerning the four EEO complaints filed by CW1, CW2 and two co-workers,
the Chief testified that he attended the EEO Alternative Dispute
Resolution (ADR) panel meeting as the representative for the agency.
The panel consisted of two management officials and two union officials.
The Chief testified that complainant was moved to the Course Development
Unit in settlement of the complaints filed against her, as well as her own
allegation that she was working in a hostile work environment. The Chief
testified that he thought moving complainant was the best decision because
complainant was having problems with the manager and the four employees.
The Chief also testified that the move would provide complainant more
opportunity because she would receive a specialized training in advance
of other employees.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, concerning Claim 1, the agency concluded that complainant
had not established a prima facie case of harassment based on her sex or
race, because there had been no testimony by the complainant or others
that any of the conduct at issue was directed to complainant because of
her race or sex. The FAD noted that all the individuals alleged to have
harassed complainant are females and, except for M, are White.
Concerning Claim 2, the agency concluded that although complainant raised
an inference of retaliation, the agency had articulated a legitimate,
nondiscriminatory reason for its action, and complainant did not offer
evidence to show that her reassignment to the Course Development Unit
was based on her prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she has proved her claim because
all of the participants are Black and she is White; and contends that
the agency's purpose in settling the four co-workers' EEO complaints
was to intimidate her. The agency did not file a response.
ANALYSIS AND FINDINGS
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). See also Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F.Supp. 318, aff'd, 545 F.2d 222
(applying the scheme to cases of reprisal). First, 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. Next, the agency
must articulate a legitimate, nondiscriminatory reason(s) for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the complainant must prove,
by a preponderance of the evidence, that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
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. McKinney v. Dole,
765 F.2d 1129, 1138- 1139 (D.C. Cir. 1985). In order to prove a case
of harassment, the complainant must establish, by a preponderance of
the evidence, the existence of five elements: (1) she is a member of a
statutorily protected group; (2) she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
group; (3) the harassment complained of was based on the statutorily
protected group; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with his work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) that there is a basis for imputing
liability to the employer. Henson v. City of Dundee, 682 F.2d 987,
903-05 (11th Cir. 1982).
The complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. To establish a prima facie case
of reprisal discrimination, the complainant must show that (1) she engaged
in prior protected activity, (2) the acting agency official was aware
of the protected activity, (3) she was subsequently disadvantaged by an
adverse action, and (4) there is a causal link between the protected
activity and the adverse action. Simens v. Department of Justice,
EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
We additionally note that the statutory reprisal clauses prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity. A violation will be found if an employer retaliates against a
worker for engaging in protected activity through threats, harassment in
or out of the workplace, or any other adverse treatment that is reasonably
likely to deter protected activity by that individual or other employees.
Concerning Claim 1, as a White female, complainant is a member of two
groups protected by Title VII. By alleging that she was threatened
with violence and subjected to profanity, which was not acted upon by
management, complainant is stating that she was subjected to harassment
and a hostile work environment. However, complainant's affidavit in
support of her claim failed to identify any facts that established
that the alleged harassment was due to her race or sex. We find that
complainant failed to provide sufficient evidence to corroborate that her
allegations of harassment by CW1, CW2, and M involved her race or sex.
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of harassment or a hostile work
environment based on her race and sex.<1> Accordingly, the Commission
affirms the agency's FAD as to Claim 1.
Concerning claim 2, assuming, arguendo, that complainant established
a prima facie case of reprisal, under McDonnell Douglas and Burdine,
the agency must furnish a legitimate, nondiscriminatory explanation for
its conduct. The Chief explained that the complainant was reassigned
as part of a settlement reached in resolution of four EEO complaints
filed against complainant by White females; also complainant was
having problems with the manager and the four employees; as well as
her own allegation that she was working in a hostile work environment.
The Chief also testified that the move would provide complainant more
opportunity because she would receive a specialized training in advance
of other employees. The Commission finds that the agency proffered a
legitimate, nondiscriminatory reason for complainant being reassigned.
Complainant possesses the ultimate burden of establishing that the
agency's explanation was a pretext for discrimination. Complainant may
prove pretext by showing that the agency's explanation is unworthy
of credence or, alternatively, that discriminatory animus more likely
motivated the agency's conduct. Burdine, 450 U.S. at 256. The Commission
concludes that complainant failed to establish pretext. In her affidavit,
complainant stated that she was removed from her position as a remedy
for the four EEO complaints, and does not attribute the agency's
action to retaliatory discrimination. On appeal, complainant states
that the settlement was an attempt to intimidate her, which argument
is unpersuasive.
The Commission has previously held that to allow the processing of an
EEO complaint by an employee, challenging the filing of an EEO complaint
by another agency employee, would have a chilling effect on the filing
of EEO complaints by aggrieved persons. See Blinco v. Department of
the Treasury, EEOC Request No. 05940194 (May 25, 1994). We have also
held that such a complaint constitutes a collateral attack on another
EEO matter. See Smith v. Department of Veterans Affairs, EEOC Request
No. 059506945 (April 4, 1996). Moreover, there is no remedial action
available to complainant when another individual files an EEO complaint,
as the agency has no authority to restrain an employee from raising EEO
violations through the EEO complaint process. See Calloway v. Department
of the Army, EEOC Appeal No. 01943406 (July 15, 1994); Sherwood
v. Department of the Army, EEOC Appeal No. 01941846 (June 3, 1994).
To establish that a settlement agreement between the employer and a third
party was an independent act of discrimination, complainant must show
that the settlement was a device to bestow unequal employment benefits
under the guise of remedying discrimination, rather than a bona fide
effort to settle a claim. See Carey v. United States Postal Service,
812 F.2d 621, 624 (10th Cir. 1987); Faison v. Department of the Navy,
EEOC Request No. 05900956 (October 12, 1990). Complainant has not
shown that the agency's settlement with the coworkers was anything
other than an effort to settle EEO claims. Complainant has produced no
credible evidence of any other motivation on the part of the agency.
The Commission concludes that the agency did not retaliate against
complainant when she was reassigned as part of the settlement.
Further, an employer has the discretion to determine how best to manage
its operations and may make decisions on any basis except a basis that is
unlawful under the discrimination statutes. See Nix v. WLCY Radio/Rayhall
Communications, 738 F.2d 1181 (11th Cir. 1984). The reasonableness of
the employer's decision may, of course, be probative of whether it is
pretext. The trier of fact must understand that the focus is to be on
the employer's motivation, not its business judgment. Loeb v. Textron,
Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). Complainant has failed
to sufficiently show that the agency's action was unreasonable in terms
of business judgment.
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reason for its action
was a pretext for retaliation. According, the Commission affirms the
FAD as to Claim 2.
CONCLUSION
Therefore, 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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
June 12, 2002
Date
1 A case analysis in the administrative file states that CW1 and CW2
created a hostile work environment, related, in part, to complainant's
reporting of improprieties, but does not relate the harassment to
complainant's protected bases.