01982601
01-21-2000
Sandra K. Ragan, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Sandra K. Ragan v. Department of the Army
01982601
January 21, 2000
.
Sandra K. Ragan,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01982601
Agency No. 09610G0490
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on
the basis of age<1> (48), in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<2>
The appeal is accepted in accordance with EEOC Order No. 960.001. For
the following reasons, the Commission AFFIRMS the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was employed
as a Support Services Specialist at the agency's Recruiting Battalion,
St. Louis, Missouri. Complainant claims she had worked very successfully
in her current position for many years prior to the appointment of
her current supervisor (S), a 26 year old Army Captain. Complainant
contends that S subjected her to harassment and disparate treatment due
to her age. Complainant claims that this harassment and discrimination
was first evidenced by a series of memoranda between them as follows:
(1) S distributed a memorandum to all staff dated September 17, 1996,
outlining instructions for correcting certain deficiencies revealed during
a recent inspection, and also set forth a procedure for taking breaks,
requiring that the break be reported to S, the Major (M), or other staff
prior to taking the break (but in practice only enforced these rules with
respect to complainant); (2) on September 26, 1996, S issued a memorandum
to complainant denoting two infractions of the break procedure and asking
her to comply (complainant denies that these infractions occurred, and
claims that S inappropriately charged her with break time for bathroom
breaks and forced her to use annual leave for an extended lunch whereas
younger staff could engage in the same conduct without penalty); (3)
complainant issued a memorandum to S the next day asking for clarification
of the first memorandum, especially regarding recruiter orientation duty
which was being taken away from complainant and given to a younger staff
person; and, (4) S issued a response memorandum the same day providing
the requested clarification. Complainant also contends that S harassed
her when, on September 30, 1996, he denied her a Within - Grade Increase
(WGI) because her most recent performance evaluation was assessed as only
"Fair," which complainant also claims was unfavorable due to S's age
bias against her. Additionally, complainant also claims that S harassed
her when, on October 17, 1996, he issued her a Notice of Unacceptable
Performance and Opportunity to Improve" (PIP).
Believing she was a victim of harassment and discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint. At the
conclusion of the investigation, the agency issued its FAD, finding no
discrimination.
The FAD concluded that complainant failed to establish a prima facie case
of age discrimination because she presented no evidence that similarly
situated individuals not in her protected class were treated more
favorably under similar circumstances, or any other evidence sufficient
to permit an inference of age discrimination. The FAD also concluded than
even if a prima facie case of age discrimination had been established, the
agency articulated legitimate nondiscriminatory reasons for its actions
which complainant has not shown to be a pretext for age discrimination. On
appeal, complainant claims that her witnesses and the agency witnesses all
lied under oath, and that S was very disrespectful toward her and engaged
in fraud and mismanagement. The agency requests that we affirm the FAD.
Initially, we note that the agency failed to address complainant's
harassment claim. Complainant asserts that all of S's action constituted
harassment based on her age. Because the FAD failed to provide an analysis
of the harassment claim, the Commission will address it here. We CLARIFY
the FAD accordingly.
To establish a prima facie case of harassment due to a hostile work
environment, complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of verbal
or physical conduct involving the protected class; (3) the harassment
was sufficiently severe or pervasive as to alter a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile,
or offensive work environment. See Humphrey v. U.S. Postal Service,
Appeal No. 01965238 (October 16, 1998); Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993).
In determining that a work environment is hostile, factors to consider
are the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee's work performance. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
In reviewing the evidence, we find that complainant has failed to
establish a prima facie case of harassment. Instead, we find that the
incidents raised by complainant are neither sufficiently severe nor
pervasive to create an objectively hostile or abusive work environment
because S's actions were appropriate and legitimately carried out in
the normal course of his supervisory duties, and there is no evidence
that they were designed to harass complainant.
Specifically, we find that the series of memoranda constituted a common
work place occurrence, and that, contrary to complainant's contentions,
the record shows that the break rules were applied to all staff,
regardless of age, although S admitted to monitoring complainant more
closely overall because she resented his rules, occasionally abused break
times, and had various performance problems.<3> Also, in his testimony,
S stated that once he recognized his mistake in counting bathroom breaks,
he stopped. S also testified that he charged complainant annual leave for
lunch, although a younger co-worker was not charged, because complainant
did not inform him before hand, and then afterwards demanded that he sign
a leave slip, which he did fearing complainant would file a grievance
if he refused. S also testified that complainant was not prohibited
from doing recruiter orientation, only that a certain portion of the
program would be conducted by another staff member, as noted in his
clarifying response memoranda to complainant. 4 S further testified that
he put all instructions to complainant in writing because she habitually
misconstrued and challenged what he said, and frequently refused to follow
his instructions. Moreover, we find that the record shows that S was
initially unfamiliar with many of the personnel rules and regulations he
was charged with administering, and that he sought advise from a personnel
specialist (PS) regarding all of his decisions affecting complainant.
Regarding the denial of the WGI, S testifies that complainant's evaluation
was only "Fair" because she failed to use tact in dealing with other
personnel, noting that she was observed to curse on the phone and call
other recruiters "stupid." This is corroborated by M and other staff. S
also testified that he did not know that this rating would result in a
denial of the WGI under the personnel regulations, which is confirmed by
PS. Complainant argues that her conduct was consistent with that of others
in the office, and submits numerous personal statements (apparently from
long-time friends and acquaintances at other offices) attesting to her
outstanding interpersonal skills and professional demeanor. We find that
although complainant may have indeed performed much better, and practiced
better interpersonal skills, before S's arrival, the record shows that
she engaged in the conduct reflected in her performance appraisal, and
that the "Fair" rating was supported as a consequence. Moreover, we find
that S did not intentionally rate her as "Fair" to preclude a WGI because
he was not aware of the applicable regulation at that time. We find the
"Fair" appraisal, and subsequent denial of the WGI were both appropriate
supervisory actions by S, and there is no evidence to suggest that either
action was intended to harass complainant or that either was motivated
by age animus against her. Furthermore, we note that another younger
staff member was also assessed as "Fair" by S during the same rating
period due to attendance problems.
We similarly find that the issuance of the PIP was appropriate under the
circumstances, within S's supervisory responsibilities, and not intended
to harass complainant due to her age. The record shows that the PIP was
issued because complainant's work failed to "pass" several inspections,
with many areas noted to be in "noncompliance. " Based on these inspection
reports, S formulated the PIP, which was reviewed by PS to insure that it
comported with the personnel regulations. Although complainant argues that
the identified deficiencies were either beyond her control or the fault of
others, the inspection reports do not reflect this. Moreover, S provided
complainant with weekly written reviews regarding her progress under
the PIP, which were objective, detailed and encouraging in tone, which
further belies the claim that the PIP was issued as harassment. However,
we note that complainant's written responses were argumentative in tone
and challenged S's ability to supervise.
In conclusion, we find that the above incidents directly resulted from
complainant's performance deficiencies, especially in refusing to carry
out S's instructions, and her lack of respect for his authority. We find
that S's responses were appropriate, and did not constitute harassment
against complainant due to age.
As for complainant's disparate treatment claim, pursuant to the
standards set forth in Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
we agree with the FAD that she failed to establish a prima facie case
of age discrimination. Although complainant asserts that she received
less favorable treatment than younger staff members, the record shows
that the break rules were applied to everyone and that S legitimately
monitored complainant more closely because of her poor attitude toward
the rules and the nature of her performance deficiencies. Moreover,
the "Fair" performance appraisal was supported by the record, and the
denial of the WGI was mandated by personnel regulations in light of this
rating. Likewise, the PIP was based on inspection reports independent
of S's input, and S conferred with PS to insure that the action was
appropriate.
Furthermore, we find nothing in the record from which to infer that any of
S's actions were a result of discriminatory animus toward complainant's
age. The evidence instead strongly suggests that complainant resented
S because of his youth and inexperience as a supervisor, and that she
would not accept his authority, resulting in performance problems and
disciplinary actions taken against her,
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 21, 2000
__________________
Date
1On her formal complaint form, complainant checked the boxes for "age"
and "reprisal" as the bases of her discrimination claim. However, only
the basis of age was discussed with the EEO counselor and subsequently
investigated. Moreover, as noted in the FAD, it does not appear that
complainant had engaged in prior EEO activity. Therefore, we find that
complainant inadvertently checked "reprisal" on the formal complaint form,
and that her discrimination claim is based only on age.
2On 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.
3Although S and M both testify that complainant is often away from her
desk without explanation, some of her co-workers testified that she
did not abuse break time. However, M testified that complainant did not
willingly adhere to the break rules, indicating that she demonstrated
her contempt by coming into his office at deliberately inopportune times
and loudly announcing her intention to go the bathroom, even though S
and other subordinate staff were present.