01990163
08-08-2000
Sheryl L. Hall, Complainant, v. Ada L. Posey Director, Office of Administration, Executive Office of the President, Agency.
Sheryl L. Hall v. Executive Office of the President
01990163
August 8, 2000
Sheryl L. Hall, )
Complainant, )
) Appeal No. 01990163
v. ) Agency No. 0A 97-01
Ada L. Posey )
Director, )
Office of Administration, )
Executive Office of the President, )
Agency. )
)
DECISION
Complainant filed a timely appeal of a final agency decision concerning
her complaint of unlawful employment discrimination on the bases of
sex (female), reprisal (prior EEO activity), and age (dob 10/29/48),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). Complainant alleges she was discriminated
against when:
(1) she was required to change her evaluations of employees she had
rated in October 1996;
(2) her duties were reduced in November 1996;
(3) the Associate Director berated and intimidated her, and gave her a
verbal first and last warning for expressing security concerns to the
U.S. Secret Service;
(4) the Associate Director used aggressive and intimidating words and
gestures towards her in October 1996;
(5) the Associate Director communicated and interacted with her in a
manner that was demeaning, disrespectful and humiliating in November
1996;
(6) the Associate Director reduced her duties and gave them to a
less experienced, lower graded male employee on November 25, 1996 and
eliminated her branch;
(7) she was required to develop guidelines and procedures for telephone
alarms during off-duty hours;
(8) the Associate Director created a hostile work environment by excluding
her from work tasks and projects;
(9) she was not considered for the position of Desktop Branch Chief;
(10) she was not considered for the position of Operational Deputy
Director in November 1996;
(11) personnel/merit practices were violated leaving her idle and
underutilized; and favoritism was shown to a male employee.
The record reveals that during the relevant time, complainant was
employed as a Supervisory Computer Specialist, GS-0334-15, at the
agency's Information Services & Technology Division, (IS&T) Office of
Administration.
Believing she was a victim of discrimination, the complainant sought
EEO counseling and, subsequently, filed a complaint on February 21,
1997. At the conclusion of the investigation, the complainant requested
that the agency issue a final agency decision.
The Agency's Final Decision
As a preliminary matter, the agency concluded that the complainant did
not have a mixed case complaint and did not process her complaint as such.
It obtained an agreement, however, with the Merit Systems Protection Board
(MSPB) for it to investigate the complainant's claims. In the agency's
final decision it reached the conclusion that it did not discriminate
against the complainant on the basis of her gender, age or reprisal
because it had legitimate non-discriminatory reasons for its actions.
A. Allegation 1
The agency concluded there was no discrimination on the basis of the
complainant's gender when the complainant was required to change her
ratings of employees she supervised. This was based on the lack of
evidence that others outside of the complainant's protected group were
treated more favorably. The agency pointed to the testimony of the
Associate Director (male, DOB 6/17/53, no prior EEO activity) of IS&T to
the effect that he also required other managers to change their ratings
of employees if their narratives did not justify the ratings, in his
view. The agency rejected the complainant's argument that the Associate
Director's reasons were a pretext for discrimination. The complainant's
argument that he assessed employee's behavior and not their performance
was insufficient to establish gender discrimination, in the agency's view.
In addition, the agency relied on the fact that another male manager (E1)
(dob 3/21/59, EEO activity not specified) was also required to change
his ratings of two subordinate employees during the same time period.
The agency's Personnel Management Specialist (female, dob 9/13/60)
confirmed that it was a legal personnel practice for a second level
manager to require a change in the ratings by first level supervisors.
B. Allegations 3, 4, and 5
The agency concluded there was no evidence of discrimination with
respect to the complainant's claims that she was berated, intimidated
and given a �first and last warning� for expressing security concerns
to the U.S. Secret Service. It found that the complainant failed to
show she was singled out or treated less favorably than other employees
and that both male and female employees were subjected to the same
treatment. Specifically, the agency pointed to the testimony of male
and female employees alike, who attested to the Associate Director's
poor communication skills.
C. Allegations 2 and 6
The agency found that the complainant's allegations relating to a
reduction in her duties were not shown to be the result of discrimination.
The agency concluded that her duties were reduced because of a
reorganization of the office in which the number of branches were reduced
from five to four. The complainant was treated no differently than other
employees whose duties were also reduced. The agency did not dispute that
the complainant's branch was redistributed, but this was done to improve
coordination of activities and to reduce overlapping responsibilities.
In addition, the reorganization plans were drafted as early as April
1996 and were approved by the Director of the office at that time
(male, dob 1/25/40, no prior EEO activity), the Deputy Director (S1)
(female dob 2/28/58, EEO activity not known) and the Special Assistant
to the President for Management and Administration (female, age not
specified, EEO activity not known). The complainant's claim that the
reorganization was a pretext for discrimination was not substantiated,
in the agency's view.
D. Allegation 7
The agency found that the complainant failed to establish a prima
facie case of reprisal when she was assigned to develop guidelines and
procedures for contractors for telephone alarms during off-duty hours.
This was because she did not show that she was subjected to an adverse
action by being given the assignment. Furthermore, the agency found that
the complainant had engaged in protected activity by seeking counseling in
December 1996 but she failed to show the management official (S2) (male,
over age 40, EEO activity not specified) responsible for giving her the
assignment was aware of her protected activity. The responsible management
official credibly stated the assignment was within the complainant's
responsibilities and within his right to assign work, according to
the agency. Finally, the agency decided that the complainant failed
to establish a nexus between her protected activity and being given the
assignment in question.
E. Allegations 9 and 10
With respect to the complainant's claim that she was discriminated
against in not being considered for the position of Desktop Branch
Chief, the agency concluded that she failed to establish a prima facie
case because she did not apply for the position when it was announced.
Furthermore, the complainant failed to establish a prima facie case of
age discrimination according to the agency, because S2 who was over age
40 at the time, acted as Branch Chief for Desktop Systems Branch.
Even assuming the complainant had established a prima facie case, the
agency concluded that there was no discrimination related to her charge
that she was not considered for the job of Operational Deputy Director
because no such job existed. The agency found that the complainant
failed to establish age discrimination as to either of her claims of
non-selection because most of the staff in the office was over the
age of 40. Moreover, the agency decided the complainant's claim that
senior White House officials made remarks about the IS & T being old,
less informed, less enthusiastic and of questionable allegiances was not
enough to prove age discrimination by a preponderance of the evidence.
F. Allegation 11
The agency concluded the complainant failed to establish a prima facie
case of discrimination when personnel/merit principles and procedures
were allegedly violated because she failed to establish she was subjected
to any adverse action or disparate treatment. The agency found that
this allegation was similar to other allegations already addressed and
for that reason, incorporated its analysis of those allegations in
its consideration of the complainant's claim. The agency pointed to
testimony of personnel specialists who disputed the complainant's claim
that merit/personnel principles and practices were actually violated
and reiterated its position that the complainant failed to apply for
the vacancy that was announced. The complainant's arguments of pretext
were largely unsubstantiated, according to the agency, and in the final
analysis she failed to show that there was any discriminatory animus
directed at her.
The Complainant's Appeal Statement
On appeal, the complainant contends she successfully proved the agency had
no good reason for reducing her role in the office because her position
description did not change substantially after the reorganization and
because she had received many awards for her performance in the past.
She further contends she did not apply for the vacancies announced in the
office because she thought it would have been futile given the Associate
Director's treatment of her. Additionally, the complainant thought the
evidence would establish that she was the target of White House employees'
investigation into her political allegiance and loyalty.
ANALYSIS AND FINDINGS
The Commission has conducted a thorough review of the record including
the complainant's and witnesses' answers to the investigator's
interrogatories. We reviewed the complainant's claims under the analysis
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Prewitt v. United
States Postal Service, 662 F.2d 292 (5th Cir. 1981), and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). We also considered the complainant's
claim that she was verbally abused, intimidated etc. according to
the parameters set forth in our guidance governing harassment by
supervisors. Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors No. 915.002 (June 18, 1999).
Based on our review, we conclude that the agency's final decision should
be affirmed.
The complainant established a prima facie case of discrimination based on
sex when her responsibilities were reduced, and a male employee was given
responsibility for some of the complainant's duties. Notwithstanding
her showing, the agency articulated with some specificity, that it
reduced the complainant's duties in an effort to reorganize the office.
The complainant testified herself, that during the reorganization, other
male employees' duties were also reduced. Moreover, the complainant
failed to establish that the agency's reorganization effort was a
pretext for discrimination. The record reflected that E1's branch was
eliminated during the reorganization. Like the complainant's, his duties
were reduced and he received assignments from the same lower graded male
employee (S2) as the complainant.
The complainant's claim that the Associate Director berated, demeaned
and otherwise created a hostile work environment was essentially a claim
of unlawful harassment by a supervisor. The record in this regard,
does not support the complainant's claim that she was treated this way
because she is a woman. Rather, there was testimony in the record that
E1 received similar abusive treatment. Furthermore, the fact that E1
was substantially younger than the complainant essentially dispelled the
inference that the complainant's age was the reason for the Associate
Director's actions. S1, who supervised the Associate Director, did not
deny that his behavior was inappropriate but the record as a whole did
not show by a preponderance of the evidence that his actions were due
to the complainant's age or sex.
The complainant's claims that she was not considered for lateral
reassignment or selection for the positions of Desktop Manager and
Operational Deputy Manager because of her age and sex are also not
supported by the record. Initially, S2 filled the position of Desktop
Branch Chief in an acting capacity in 1996, but the person ultimately
selected on a permanent basis was female (DOB 10/31/61). There was no
indication on any of the organizational charts in the record of the
existence of a position known as Operational Deputy Manager. Thus,
we find that the complainant's claim regarding this position cannot be
credited.
Another female employee (DOB 11/22/46, EEO activity in 1997) was laterally
assigned to the branch chief position for the Data Center Branch.
In addition, this female employee testified that her duties were not
reduced and she was not required to change any of her subordinate
employees' performance evaluations. Therefore, the preponderance
of the evidence did not support the complainant's claim that she was
discriminated against on the basis of her age or sex with respect to
being denied lateral reassignment to a branch chief position.
The complainant claims she was given the assignment to develop
guidelines for handling telephone alarms during off-duty hours,
in reprisal for her protected activity. In order to establish a
prima facie case of reprisal, the complainant must show she engaged
in protected activity, her supervisor knew about her activity, she
was subjected to an adverse employment action and finally, there was a
sufficient nexus between the adverse action and her protected activity.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). We find there was
little persuasive evidence that the assignment about which the complainant
complains, constituted an adverse employment action or that there was a
nexus between her protected activity and the assignment. On the contrary,
being required to develop procedures for handling telephone alarms after
normal working hours would seem to fall squarely within the complainant's
responsibilities for telecommunications services and information security
policy.
An undercurrent in the complainant's complaint was her perception
that she was being mistreated because she had raised the possibility
that certain assignments given to her and her subordinates violated the
Hatch Act. The complainant also made reference to questions being raised
about her political allegiances as reasons for the actions surrounding
her employment. These assertions by the complainant were not probative
of her claims of discrimination because of her sex and age and only
served to provide a non-discriminatory reason for the agency's actions.
The complainant's contention that these actions were motivated by
political concerns along with the lack of persuasive evidence of sex,
age or reprisal leads us to conclude that the agency's final agency
decision finding no discrimination was correct.
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 agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 8, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
1 On 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.