01962274
01-05-1999
Venette Mariner, Appellant, v. Louis Caldera, Secretary, Department of the Army, (National Guard Bureau), Agency.
Venette Mariner v. Department of the Army
01962274
January 5, 1999
Venette Mariner, )
Appellant, )
) Appeal No. 01962274
v. ) Agency No. T-0675-CAA-95-0
)
Louis Caldera, )
Secretary, )
Department of the Army, )
(National Guard Bureau), )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely appealed the agency's final decision finding that it
had not discriminated against her in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. This appeal is
accepted in accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
Whether the agency discriminated against appellant by subjecting her
to a two year pattern of retaliation for a prior EEO complaint when:
(1) the Chief of Supply and Services made an unsubstantiated negative
comment about her performance; (2) she was denied a promotion to Supply
Clerk, GS-05; (3) she was removed as an EEO counselor from a case she
was working on; and (4) management officials placed unsubstantiated
derogatory letters in her personnel file without giving her proper notice
or opportunity to respond.
BACKGROUND
At the time this complaint arose, appellant was employed with the agency
as a Supply Clerk, GS-04. Appellant resigned from this position on May
2, 1995. On February 7, 1995, appellant filed a formal complaint alleging
discrimination as set forth above under "Issues Presented." The agency
accepted the complaint and conducted an investigation that included
an investigatory hearing. At the conclusion of the investigation,
appellant was advised of the appropriate appeal rights. Thereafter,
appellant requested a final agency decision on the record. On December
20, 1995, the agency issued a final decision finding no discrimination.
Appellant appeals this decision.
ANALYSIS AND FINDINGS
Appellant may establish a prima facie case of reprisal by showing: 1)
that she engaged in protected activity, e.g., participated in a Title
VII proceeding; 2) that the alleged discriminating officials were aware
of the protected activity; 3) that she was disadvantaged by an action of
the agency contemporaneously with or subsequent to such participation;
and 4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed,
545 F.2d 222 (1st Cir. 1976). See also McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973), and Wrenn v. Gould, 808 F.2d 493, 500
(D.C. Cir. 1987) (applying the McDonnell Douglas standard to reprisal
cases).
Applying the appropriate law, the Commission finds, contrary to the
agency's decision, that appellant established a prima facie case of
reprisal discrimination. First, the record shows that on October 26,
1993, appellant filed an informal EEO complaint naming her first line
supervisor (a responsible management official in this complaint) as
the discriminating official. Second, it is undisputed that the three
Responsible Management Officials (RMOs) involved in the case at issue
were aware of appellant's prior complaint. Third, since the first
alleged discriminatory action in this case took place on October 27,
1993, the contemporaneous element that is necessary for a reprisal case
is established. Fourth, because the adverse actions alleged by appellant
in this case occurred within such close proximity to appellant's prior
complaint, a causal connection may be inferred.
Now, the agency has the burden of production to articulate some
legitimate, nondiscriminatory reason for its actions. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). At issue
in appellant's first allegation is a memorandum sent by the Chief of
Supply Services (RMO 1), in which he observed that appellant was making
insufficient progress in learning her new job. Appellant contends
that this was an unjustified statement made in reprisal for previously
filing a complaint in RMO 1's division. RMO 1 testified that he made the
statement and that it was based mostly on discussions with appellant's
supervisors.
Appellant's second issue concerns her non-selection for a GS-05
Supply Clerk position. On June 10, 1994, the vacancy was announced
for the position. Five candidates, including appellant, were referred
for consideration to the Selecting Official (SO). The candidates were
ranked as follows:
Candidate 1 94.6 Points
Candidate 2 92.1 Points
Appellant 3 84.6 Points
Candidate 4 79.6 Points
Candidate 5 77.1 Points
The SO testified that he reviewed the applicants and offered the position
to Candidate #1, who declined. Thereafter, an offer was made to Candidate
#2, who also declined. Three candidates were left, Candidate #5, who was
considered ineligible because he was outside the area of consideration,
and two current employees (appellant and Candidate #4). Instead of making
a third selection, the SO decided to reannounce the vacancy because he
wanted a larger pool to select from. The SO also testified that he
did not choose appellant essentially because she failed to put forth
much effort on her questionnaire that was required for the application
process and because of her performance on her interview. Therefore,
he concluded that appellant was not ready for the position.
In the second round, four candidates were referred; the two holdovers
(appellant and Candidate #4) from the first announcement, and two
additional candidates. They were ranked by the SO and another evaluator
as follows:
Candidate SO ranking Other Evaluator
Candidate 1 87.1 77.1
Candidate 2 82.1 74.6
Candidate 3<1> 69.6 69.6
Appellant -- --
Appellant declined to be interviewed for the second round. The same areas
were evaluated. However, unlike the first round, the holdover Candidate
#4 was ranked above appellant. The initial Certificate of Referral
contained only three names, Appellant, Candidate #1, and Candidate #3.
The Certificate of Referral was in accord with restrictions placed on the
area of consideration, which was limited to current technicians because
of a hiring freeze at the time. This restriction was later relaxed and
Candidate #2 was added. The SO selected the first two candidates for
the position but Candidate #2 declined, so Candidate #3 was selected as
a replacement.
The third issue raised by appellant was management's alleged interference
in appellant's performance of her EEO counseling duties. Appellant was
an EEO counselor with the agency. On April 28, 1994, appellant was
contacted by an employee for counseling in an EEO complaint against
a supervisor. This supervisor was the alleged discriminating official
in appellant's prior EEO complaint. Appellant testified that she was
initially concerned about counseling the case. However, after informing
the appropriate officials of the matter and expressing her belief
that she felt that she could be objective in spite of her involvement
with the supervisor, she was told to proceed. She then informed RMO 1
about the matter, and he expressed no objection. However, the next day,
appellant was informed by officials that RMO 1 objected to her working
on the case and instructed her to cease her counseling activities.
She was informed that another counselor was assigned to the case.
Appellant contends that the new counselor assigned to the case also had
problems with the same supervisor named as the alleged discriminating
official. RMO 1 testified he initially saw no problem with appellant
serving as counselor on the case, but later he discussed the matter
with the Command and other agency officials, and based on his belief
that appellant and the complainant were friends, he thought appellant
may have a problem remaining objective.
Appellant's final issue involves her Workers' Compensation claim.
Appellant injured her left shoulder on November 9, 1993. A Workers'
Compensation claim was processed. Appellant's attending physician
recommended no use of her left arm and excused her from work for the
period of November 10 until November 24, 1993, and then until he cleared
appellant for return.
On December 6, 1993, the Chief of Stock Control (RMO 2), wrote a letter
to appellant's attending physician, inquiring about appellant's status and
the possibility of her return to work in a light-duty status. On December
7, 1993, RMO 2 wrote the U.S. Department of Labor, Office of Workers'
Compensation Programs (OWCP), stating that appellant's doctor had not
cleared her for light-duty work. She further asserted, in the letter,
that on several occasions she observed appellant lifting and carrying
her grandchild. RMO 2 opined that though appellant's injury was to
her left shoulder, lifting and carrying a child would put a strain on
appellant's upper body. This evidence led RMO 2 to request appellant's
physician to fill out a Duty Status Report. She further advised OWCP
that the physician failed to respond. RMO 2 concluded that she was
concerned that there was a conflict in that appellant would not be able
to work light-duty, but could carry and lift a child. On December 8,
1993, the Supervisor of Supply Technicians (RMO 3) also wrote a letter
to OWCP, similar to RMO 2's letter, stating that he had also observed
appellant carrying her granddaughter. He opined that the child was
approximately three to four years old and weighed at least 30 pounds.
He concluded that he saw a conflict in that appellant could carry a
child but could not perform any duties. On December 13, 1993, RMO
2 wrote another letter to appellant's physician to inquire about the
availability of appellant for light-duty. According to the record,
her first letter was not delivered. RMO 2 testified that she never
received a response to her second letter to the physician.
Appellant contends that the letters written by both RMO 2 and RMO 3
suggested misrepresentations of her work-related injury, therefore
she claims that the letters were an attempt by the RMOs to establish
grounds for challenging her Workers' Compensation claim. RMO 2 testified
that her letters were written in an attempt to determine appellant's
ability to do light-duty work and not to challenge her injury claim.
RMO 3 testified that his letter was an attempt to get appellant back to
work in a light-duty status and not an attempt to challenge her claim
of injury or lay the groundwork for a controvertible claim.
Following the standards of proof established by McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); and Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248 (1981), appellant must now show
that the agency's articulated reasons are pretext for discrimination.
This can be accomplished either by establishing that the stated reasons
were not the actual motivation for the actions taken or by showing that
the agency's explanations are unworthy of credence. McDonnell Douglas,
We find that appellant has proven pretext and discrimination, by a
preponderance of the evidence, with regard to her non-selection for
a promotion but failed to show a discriminatory motive with regard to
Issues #1, #3 and #4. We base our finding of discrimination on the fact
that the SO's explanations for not selecting appellant during the first
selection process for Supply Clerk, GS-05, and his decision to reannounce
the position are not credible. First, the SO testified that he decided to
reannounce the position because he wanted to have a larger selection pool.
It is clear from the record that the subsequent reannoucement did not
result in a larger pool of candidates; on the contrary, the selection
pool was smaller. Second, the SO testified that he concluded appellant
was not ready for the promotion based on her response to an application
questionnaire and her interview. Specifically, regarding appellant's
questionnaire, the SO stated that appellant indicated that she worked
on the MILSTRIP<2> without providing further explanation as to what she
did on this project. The SO further stated that based on appellant's
response, he believed that appellant failed to put forth much effort
on the application process. We note that the SO testified that he
had direct knowledge about appellant's job on the MILSTRIP and what it
detailed because he worked with her on the project. We further note that
the SO testified that he chose not to review appellant's performance
appraisal, attached to her SF-171, which provided specific comments
concerning appellant's excellent performance on the MILSTRIP project.
He explained that he chose not to review appellant's performance appraisal
in order to not show bias since appellant worked for him in his unit.
We find that these facts discredit the legal sufficiency of the SO's
determination because, on the one hand, he condemns appellant's failure
to highlight her experience while, on the other hand, he discounts
direct evidence of her experience. As for appellant's interview,
the SO essentially testified that he determined that appellant was not
ready for the promotion to GS-05 based on her interview performance.
However, the SO offered no examples in support of his conclusion,
nor did the agency submit sufficient independent evidence to support
its explanation. Therefore, we find that the agency has not given
appellant a "full and fair opportunity" to establish pretext, and find,
for this reason, that the agency has failed to articulate a legitimate,
nondiscriminatory reason for appellant's non-selection.
Regarding the SO's assessment that appellant was not ready for the
position, we find that the evidence of record directly contradicts
his testimony. For instance, the SO ranked appellant third and above
Candidate #4 during the first selection process. Also, he testified
that appellant was qualified for the job. In addition, appellant had
two years of experience in the position as a GS-04, and had received an
excellent performance appraisal rating. The SO also testified that he
knew appellant's work and knew what she could do from personal experience
but does not provide any persuasive evidence as to why appellant was
not prepared.
Considering the experience of the candidates, we especially note
that the first selection process produced three candidates who were
current technicians. The Technician Personnel Manual A17 specified
that priority consideration will be given to technicians if there are
a minimum of three candidates. Appellant was among the top three
technicians, however, no priority consideration was given to her.
While we acknowledge that the SO testified that he was not aware of the
policy, we find that his testimony lacks credibility in light of the
fact that he consulted with RMO 1, RMO 2 and the Personnel Specialist
before deciding to reannounce the position. Based on our review of the
record, we find that a preponderance of the evidence contradicts the
SO's evaluation that appellant was not ready for a promotion to Supply
Clerk GS-5. Further, we find that the SO did not articulate legitimate,
nondiscriminatory reasons for his employment decisions. Accordingly,
the Commission finds that the agency discriminated against appellant on
the basis of reprisal as alleged. In accordance with this finding, we
REVERSE the agency's final decision and find that appellant has proven
by a preponderance of the evidence that the agency discriminated against
her with regard to the non-selection for Supply Clerk, GS-05.
As for appellant's remaining issues, we find that appellant has
not established a continuing violation of reprisal discrimination.
In light of this finding, we also conclude that appellant has no basis
for a constructive discharge claim. In support of our finding, we find
that RMO 1's comments regarding appellant's insufficient performance
did not result in any adverse action against her. Although we find that
the letters written by RMO 2 and RMO 3 appear to controvert appellant's
Workers' Compensation claim, we find that appellant essentially alleges
that the RMOs' actions were misleading. Therefore, appellant does
not state a claim because her allegations merely attack the manner in
which agency officials represented their position in the OWCP forum.
In this regard, it is well settled that an agency has an obligation to
controvert an employee's compensation claim where there is a dispute
as to an employee's entitlement. See Simien v. U.S.P.S. EEOC Appeal
No. 01962663 (November 19, 1996) (citing Hall v. Dept. of the Treasury,
EEOC Appeal No. 01945595( February 23, 1995) ). Finally, we find that
the agency appropriately removed appellant as EEO counselor on a case
that involved the same management official that appellant had named as
the alleged discriminating official in her EEO complaint. Appellant's
assignment to the case would have been inconsistent with her neutral
role as an EEO counselor. RMO 1 contends that he removed appellant
because he believed she was friends with the complainant. We find
that he reasonably perceived a conflict. In light of these findings,
we conclude that appellant has not proven that the RMOs discriminated
against her with regard to the incidents alleged in Issues #1, #3,
and #4. Therefore, the Equal Employment Opportunity Commission AFFIRMS
the agency's final decision in part and REVERSES the agency's decision
in part. In accordance with this decision, the agency shall comply with
the following order.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within 30 days of receipt of this decision, the agency shall offer
appellant the GS-05 technician position that appellant would have
occupied absent discrimination or, if justified by the circumstances, a
substantially equivalent position. The offer shall be made in writing.
Appellant shall have 15 days from receipt of the offer to accept or
decline the offer. Failure to accept the offer within 15 days will be
considered a declination of the offer, unless the individual can show
that circumstances beyond her control prevented a response within the
time limit.
2. If the offer is accepted, appointment shall be retroactive to the
date the applicant would have been hired. Back pay, computed in the
manner prescribed by 5 C.F.R. �550.805, shall be awarded from the date
appellant would have received the promotion until the date appellant
actually enters on duty. Interest on back pay shall be included in the
back pay computation where sovereign immunity is waived. Appellant shall
be deemed to have performed service for the agency during this period
for all purposes except for meeting service requirements for completion
of a required probationary period.
3. If the offer of employment is declined, the agency shall award
appellant a sum equal to the back pay she would have received computed
in the manner prescribed by 5 C.F.R. �550.805, from the date she would
have been appointed until the date the offer was declined. Interest on
back pay shall be included in the back pay computation. The agency shall
inform appellant, in its offer of employment, of the right to this award
in the event the offer is declined. Back pay may not extend from a date
earlier than two years prior to the date on which the complaint was
initially filed by appellant.
4. Within 45 days of receipt of this decision the agency shall conduct
a supplemental investigation pertaining to appellant's entitlement to
compensatory damages incurred as a result of the agency's failure to
select appellant for promotion to Supply Clerk GS-05. The agency shall
afford appellant thirty (30) days to submit objective evidence showing
that he incurred compensatory damages and that the damages were related
to the unlawful discrimination found in this case. Failure to submit
the evidence within 30 days will be considered a waiver of such an award
unless appellant can show that circumstances beyond her control prevented
a response within the time limit.
5. The agency shall post copies of the attached notice at the National
Guard Bureau, San Luis Obispo, California. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
6. The agency shall provide training in the obligations and duties
imposed by Title VII to the supervisors responsible for the instant
action.
7. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid by
the agency. The attorney shall submit a verified statement of fees to
the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of
this decision becoming final. The agency shall then process the claim
for attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Jan 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated ________, which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et al. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The National Guard Bureau, San Luis Obispo, California, supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The National Guard Bureau, San Luis Obispo, California, has remedied
the employee affected by the Commission's finding by offering her
a GS-5 Supply Technician position, back pay with interest, or an
equivalent sum, and training in the obligations and duties imposed
by Title VII to the supervisor responsible for the instant action.
The National Guard Bureau, in San Luis Obispo, California, will
ensure that officials responsible for personnel decisions and terms
and conditions of employment will abide by the requirements of all
Federal equal employment opportunity laws.
The National Guard Bureau, San Luis Obispo, California, will not
in any manner restrain, interfere, coerce, or retaliate against any
individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 This was the holdover Candidate #4 from the previous announcement.
2 The record does not provide an explanation for this acronym.