Sheryl L. Hall, Complainant,v.Ada L. Posey Director, Office of Administration, Executive Office of the President, Agency.

Equal Employment Opportunity CommissionAug 8, 2000
01990163 (E.E.O.C. Aug. 8, 2000)

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.