01985749
02-17-2000
Virginia A. Walsh, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Virginia A. Walsh v. Federal Deposit Insurance Corporation
01976556
February 17, 2000
Virginia A. Walsh, )
Complainant, )
)
v. ) Appeal No. 01976556
) No. 01985749
Donna A. Tanoue, ) Agency No. 94-19
Chairman, ) No. 94-47
Federal Deposit Insurance Corporation, )
Agency. )
)
DECISION
INTRODUCTION
On August 29, 1997, and April 7, 1998, Virginia A. Walsh (hereinafter
referred to as complainant) filed appeals from the July 24, 1997, and
February 13, 1998, final decisions of the Federal Deposit Insurance
Corporation (hereinafter referred to as the agency) concerning her
complaints of unlawful employment discrimination in violation of the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �621
et seq. Complainant received the agency's final decisions on August 5,
1997, and March 9, 1998, respectively. The appeals are timely filed
(see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.402(a)))<1> and accepted in accordance
with EEOC Order No. 960, as amended. For the reasons that follow,
the agency's decisions are AFFIRMED.
ISSUE PRESENTED
The issue presented in these appeals is whether the complainant has
proven, by a preponderance of the evidence, that the agency discriminated
against her and harassed her on the bases of age (DOB April 11, 1935)
and reprisal with regard to certain incidents in 1993-1994.
BACKGROUND
Complainant filed her formal complaints on May 12 and September 2,
1994. In a final agency decision (FAD) issued in October 1994, the
agency accepted several allegations for investigation. Following the
investigation, complainant was advised of her right to request a hearing
before an EEOC Administrative Judge or an immediate FAD. She requested
a hearing but later withdrew her request. The agency issued a FAD on
February 13, 1998, finding no discrimination. Complainant has filed
an appeal, pending herein as Appeal No. 01985749. In the October 1994
FAD, the agency also dismissed several allegations, and complainant
filed an appeal. That action was reviewed by the Commission in EEOC
Appeal No. 01951154 (May 3, 1995), which, inter alia, remanded some of
the dismissed allegations to the agency. Following an investigation,
complainant was advised of her right to request a hearing before an EEOC
Administrative Judge or an immediate FAD. She requested a hearing but
later withdrew her request. The agency issued a FAD on July 24, 1997,
finding no discrimination.<2> Complainant has filed an appeal, pending
herein as Appeal No. 01976556. The Commission will address both appeals
in the instant decision.
Complainant began working for the agency in March 1991 as an attorney,
Liquidation Grade-13 (LG-13), assigned to the Irvine/Chatsworth office.
In this position, complainant worked under a renewable, temporary
appointment in the excepted service, not to exceed one year.<3> In March
1993, complainant came under the supervision of S1 (age 36), until his
transfer to the Los Angeles office (LA), a satellite of the Chatsworth
office, in October 1993. When the Chatsworth office was destroyed
in January 1994 by an earthquake, complainant and all employees were
relocated to LA. Complainant was placed under the supervision of S1.
In May/June 1994, complainant was reassigned to the supervision of S2
(age 42). Both S1 and S2 reported to M1 (age 36), and all three were
permanent employees of the agency.
There are seven issues before us on the merits in this decision.<4>
Complainant claimed that, on the basis of age, (a) [1] she was denied
reassignment to LA until January 17, 1994; (b) [2]<5> from August to
October 1993, S1 harassed her through angry and unprofessional email
messages regarding her work; and (c) [3] from January 31 through May 1994,
S1 harassed her through angry and unprofessional email messages regarding
her work. Complainant claimed that, on the basis of age and reprisal,
(d) [10] after March 1994, S1 subjected her to stricter scrutiny and a
higher standard of review than other employees; (e) [11] in June 1994,
she received a negative performance appraisal of "fully satisfactory";
(f) [12] in late July 1994, S2 denied her request for advance sick leave;
and (g) [13] in mid-August 1994, S2 denied her request for a change in
her alternative work schedule.
In response to Issue (a), the agency explained that assignment to
Chatsworth or LA was made by the manager (M1) based on need for litigation
or bankruptcy expertise, and complainant, as senior litigation counsel,
was retained at Chatsworth until January 1994. M1 also stated that she
never requested transfer. Further, M1 denied that employees transferred
to LA received special opportunities. With regard to complainant's
claims of harassment, scrutiny and a negative appraisal (Issues (b)-(e)),
S1 stated that his actions were warranted and justified based upon
complainant's poor performance and numerous missed deadlines detrimental
to the agency. S1 denied that his actions constituted harassment or that
he acted based on complainant's age or in reprisal. As to Issue (f),
S2 explained that approval of advance sick leave was discretionary by
office management and that the action was without discriminatory animus.
Finally, S2 stated that, as to Issue (g), agency regulations forbade
the change in the work schedule requested by complainant.
Complainant's statements in support of her appeal challenge the agency's
criticisms of her work performance and charge agency managers with
similar errors. Complainant also asserts that some of her performance
problems were due to the fault of others. She argues that, because
she established a prima facie case, she should prevail on her claim
of discrimination. She also cites minor factual inconsistencies not
of relevance to the legal analysis or disposition of her complaints.
The agency submitted briefs in support of its actions.
ANALYSIS AND FINDINGS
Harassment Claim
Complainant has alleged that she was subjected to harassment and disparate
treatment based on age and reprisal. The harassment of an employee
based on his/her 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). To prevail
on her harassment claims complainant must show that she was subjected
to a hostile work environment because of discriminatory factors, i.e.,
age or reprisal. In assessing allegations of harassment, the Commission
examines factors such as 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.
Harris v. Forklift Systems, Inc., 510 U.S 17 (1993). Usually, unless
the conduct is severe, a single incident or group of isolated incidents
will not be regarded as discriminatory harassment. Walker v. Ford Motor
Co., 684 F.2d 1355, 1358 (11th Cir. 1982). See Bloomer v. Department
of Transportion, EEOC Petition No. 03980137 (October 8, 1999).
With regard to complainant's claims of harassment, based on the record
before us, we find that the weight of evidence shows that the events and
incidents alleged by complainant were not based on discriminatory factors,
were not unwarranted, and were not sufficiently severe or pervasive
to affect her work environment. Complainant has not shown that S1's
criticisms and scrutiny were not based on legitimate concerns about her
performance or that the events were based on age-based hostile animus
or taken in reprisal for her EEO activity. Further, she has not shown
that she was entitled to advance sick leave and a change in her work
schedule or that S2's actions were based on age-based hostile animus or
taken in reprisal for her EEO activity.
Disparate Treatment Claims
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Loeb v. Textron, Inc., 600 F.2d 1003
(1st Cir. 1979). Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). Initially, for complainant to prevail, s/he must
first 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;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Following this
established order of analysis is not always necessary where the agency
articulates an explanation for its actions. In such cases, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis--the ultimate question of whether complainant has shown by a
preponderance of the evidence that the agency's action was motivated
by discrimination. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-14 (1983). It is complainant's burden to
demonstrate by a preponderance of the evidence that the agency's action
was based on prohibited considerations of discrimination, that is, its
articulated reason for its action was not its true reason but a sham
or pretext for discrimination. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993). Under the ADEA, the complainant must show that
her age was a determining factor in the agency's removal action, that
is, considerations of age made a difference in the agency's action.
Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993) (age had "a
role in the process and a determinative influence on the outcome").
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The agency's explanations show that its actions were
based on legitimate considerations about the quality of complainant's work
and were in accord with the agency's personnel and leave regulations.
Complainant has not demonstrated that the criticism of her work
performance was not accurate or unwarranted. Complainant's criticisms of
others has not undermined the agency's explanations or shown that her work
performance did not merit criticism. She also asserts that the agency's
actions were an attempt to justify non-renewal of her employment contract,
but, in fact, her contract was renewed for an annual term in May 1994
when she was selected for an appointment and renewed thereafter until
December 1996. We find therefore that complainant has not shown that
the agency's reasons for its actions were pretextual and that the agency
did not discriminate against complainant on the bases of age or reprisal.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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:
02-17-00
Date Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On 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.
2Complainant correctly notes that the agency's FADs were issued
more than 60 days beyond her requests, which is not in accord with
the Commission's regulations. 64 Fed. Reg. 37,644, 37,657 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.110(a)).
The agency is reminded that FADs should be issued no later than 60 days
from the date a complainant makes a request.
3Complainant's appointments were renewed on an annual basis through
December 1996.
4The numbers assigned to each allegation in EEOC Appeal No. 01951154
are noted in brackets.
5Although initially dismissed this claim was subsequently accepted by
the agency.