Barbara J. Kelly v. Department of Justice 01974304 January 7, 2000 Barbara J. Kelly, ) Complainant, ) ) Appeal No. 01974304 v. ) Agency No. D1873578 ) DJ1873571 Janet Reno, ) Secretary, ) Department of Justice, ) Agency. ) ) DECISION INTRODUCTION Complainant timely initiated an appeal of a final agency decision concerning her complaints of unlawful employment discrimination on the bases of sex (female), age (d.o.b., November 11, 1952), and reprisal (prior EEO activity), 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 in accordance with EEOC Order No. 960.001. For the following reasons, the final agency decision is AFFIRMED. ISSUE PRESENTED The issue presented herein is whether complainant has established that she was discriminated against on the above-referenced bases when her supervisor, the alleged discriminating official (ADO) in this case, (1) required her to take annual leave when she left work to buy a work-related going away present for a co-worker; (2) failed to give her documentation for "accountable property requests for 9 millimeter pistols" during a meeting; (3) did not invite her to a luncheon meeting; (4) treated her less favorably than similarly situated employees regarding the allocation of office space and training; (5) gave her an unfavorable job performance evaluation; and (6) made an inappropriate comment to her after she filed her first EEO complaint. PROCEDURAL HISTORY Complainant filed a formal complaint on December 16, 1994, in which she raised (1) - (5) of what has been identified as the issue presented.<2> On June 20, 1995, she filed another formal complaint in which she raised issue (6).<3> The agency accepted both complaints for processing, and at the conclusion of its investigation, issued a combined final decision finding no discrimination. This appeal followed. FACTUAL BACKGROUND The evidence in the investigative files reveals that, at the time of the alleged incidents of discrimination, complainant was employed by the agency as a Supervisory Contract Specialist in the Procurement Section of the Federal Correctional Institution. Regarding the first issue (i.e., being required to take annual leave when she left work to buy a work related gift for a co-worker), complainant stated that one of her co-workers was being transferred to another unit and, therefore, she (complainant) wanted to give her (co-worker) a going away party. When complainant mentioned this to the ADO, he stated that he did not feel comfortable allowing her to use official government time to prepare for a party. At that point, she reminded him that he had allowed other employees to do it in the past.<4> The ADO responded that those other employees had not requested as much time as she was now requesting.<5> When she asked him for guidance, he never responded so complainant took five hours of annual leave. According to the ADO, complainant's request was denied not on the basis of sex and age, but because she wanted to leave work at 9:00 a.m., while the other employees to which she referred left work at approximately 2:00 in the afternoon to pick up the food for a co-worker's retirement party. He stated that leaving at 9:00 in the morning for 6.5 hours is very different from leaving at 2:00 in the afternoon for three hours. He further stated that if the complainant had requested that she be allowed to leave in the afternoon for two or three hours, her request probably would have been granted. In addressing the second issue, complainant stated that the ADO failed to provide her with documentation for a request for nine millimeter pistols. She believes this was discriminatory because her two counterparts<6> were provided this information. According to her, when she asked for her copy of the documentation, the ADO told her that she had to get it from someone else. The ADO does not remember this particular incident.<7> He did state, however, that if it did happen, it certainly was not based on age and sex, particularly since all three of his assistant department heads, i.e., complainant and her two counterparts, were females between the ages of 41 and 46. As for the third issue, complainant stated that on September 14, 1995, the ADO invited one of her subordinates (female) to a luncheon. When extending the invitation, he indicated to the subordinate that he would be inviting three other employees (all females), one of which was complainant. According to complainant, she and one of the other persons, were never invited. According to the ADO, he invited some of the employees from complainant's section to attend lunch with him in the commons area. He stated that, in an effort to "get around and see people more," he decided to eat lunch in the commons area once a week and anyone who wanted to join him was more than welcomed. He also stated that because complainant and her staff never joined him, he went to a few of her subordinates and asked them to have lunch with him. According to him, complainant was not invited directly because she was not in her office when he extended the invitations. He contended that he asked the people he invited to extend the invitation to complainant. The people that he invited, however, denied that he asked them to inform complainant about the luncheon. Several employees, including witnesses for the complainant, testified that the ADO had an open lunch once a week and that all employees were encouraged to attend. Regarding the fourth issue (i.e., being treated less favorably than similarly situated employees regarding the allocation of office space and training), complainant stated that one of her subordinates was being transferred so she had plans to utilize the now vacant office space. After formally requesting the space, complainant's request, along with the request of two others,<8> was denied by the ADO. Instead, the ADO decided to split the office between complainant's section, i.e., Contracting and the section of the other requesting parties, i.e., Budget and Accounting. Complainant believes that if the vacant office space had been in another supervisor's area, that supervisor would have been allowed to utilize it. The ADO stated that his decision was based on his desire to appease both sections, particularly since there was already some tension between the two. In addressing the failure to train portion of this issue, complainant stated that employees in the other two sections (Budget/Accounting and Trust Fund), both of which are supervised by women over 40, 41 and 46 to be specific, were accorded training opportunities that her employees were not. She contended that at the end of fiscal year 1995, there were some surplus funds that the supervisor of the Budget/Accounting office was responsible for disseminating. Complainant stated that the Budget/Accounting supervisor informed the Trust Fund supervisor that she (Trust Fund supervisor) could use some of the funds to train some of her employees. According to complainant, when she asked the Budget/Accounting supervisor why she had not been contacted regarding the availability of training funds, she (the Budget/Accounting supervisor) claimed to have forgotten. The ADO contended that while he does remember the availability of extra funds for equipment and other supplies at the end of fiscal year 1995, he does not remember anything regarding training. He does remember, however, asking complainant if she had requested any new equipment and/or supplies and her response indicated that she did not know anything about it. According to him, upon discovering that complainant was not aware of the extra funds, he contacted the Budget/Accounting supervisor and informed her to make certain that all section heads were contacted and made aware of the fiscal situation.<9> In addressing the fifth issue, the complainant stated that, to date (May 1, 1995), she had not yet received her annual performance evaluation for the past fiscal year that ended March 31, 1995. Prior to that, she did not receive her first quarter performance logs in a timely manner. According to her, quarterly performance logs are supposed to be received no later than ten days after the completion of the quarter. That being the case, she should have received her performance logs for the first quarter of the rating period (April - June, 1994) by July 10, 1994. Instead, she received a document on October 12, 1994 in which two quarterly rating periods were lumped together. In addition, complainant believes that the October 12 document contained some unjustified entries. Specifically, she pointed to two "minimally successful" entries; one for "making [the ADO] look bad" during a project for which she volunteered, and another for not processing a document quickly enough. The ADO stated that complainant's performance ratings are not based on anything other than her penchant for circumventing established procedures and clearly rejecting his orders. The ADO's supervisor stated that he disagreed with one of the ratings that the ADO gave complainant. He also stated, however, that he does not believe that the erroneous rating was based on gender or age, but rather on a personality conflict.<10> In addressing the final issue of her complaint, complainant stated that the ADO harassed her after she filed her first EEO complaint. She stated that the ADO approached her a day after her initial EEO investigation began and made negative comments to her about their relationship. She recalled that the ADO told her that she needed to obey the proper chain of command. According to her, a few weeks later, during a confrontation with the ADO regarding one of her employees who was out on sick leave, the ADO said, "The problems that we are having we would not be having if we were two males. . . . common knowledge that women hold grudges. . . You just brought up an incident that referred to the past and ask any woman in [this department] if women don't hold grudges." The ADO confirmed that he told complainant that there are difference between the way men and women handle disagreements. ANALYSIS AND FINDINGS Sex and Age Discrimination In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). See, Hochstadt v. Worcester Found. 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); see also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (applying McDonnell Douglas to age cases). First, complainant must 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. Next, the agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, then the complainant must prove, by a preponderance of the evidence, that the legitimate reason proffered by the agency was a pretext for discrimination. Id. at 256. Although the initial inquiry in a discrimination case usually focuses on whether the complainant has established a prima facie case, following this order of analysis is unnecessary when the agency has articulated a legitimate, nondiscriminatory reason for its actions. See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from whether the complainant has established a prima facie case to whether s/he has demonstrated by preponderance of the evidence that the agency's reasons for its actions merely were a pretext for discrimination. Id.; see also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983). The Commission finds that the agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding the first issue, the agency contends that complainant's request to use official government time to plan for a co-worker's going away party was denied because complainant wanted to use too many hours and wanted to leave at the start of the business day (9:00 a.m.) as opposed to in the afternoon. Regarding the second issue, the agency denied that complainant was not issued documentation for "accountable property requests for 9 millimeter pistols." The agency pointed out that if complainant was not given the documentation, it certainly was not based on age and gender since her two counterparts (who, like complainant, are female and between the ages of 41 and 46). In addressing the third issue, the agency contended that the luncheon, to which complainant referred in her complaint, was held every Wednesday and every employee under the ADO's supervision was allowed, in fact encouraged, to attend. Regarding the being denied office space and training incidents, the agency contended that the office space that complainant requested was also requested by two other supervisors from another section and, in an effort to not increase the tension that already existed between the two sections, it decided that the two sections should share the space. As for the training (made possible by the availability of extra funds), the ADO stated, and the complainant confirmed, the Budget/Accounting supervisor (female over 40) was charged with disseminating the extra funds. He also stated that he did not know that employees under complainant's supervision were denied training while others were not. In addressing the fifth issue, the ADO stated that complainant's performance rating had nothing to do with her age or gender, but rather her refusal to follow instruction and established procedures. The ADO's supervisor stated that while he disagreed with one of complainant's rating (he thought it should have been higher), he did not think the inadequate rating was based on age and gender because the ADO supervised two other females over the age of 40 and never had problems with them.<11> Because the agency has proffered a legitimate, nondiscriminatory reason for the alleged discriminatory events, complainant now bears the burden of establishing that the agency's stated reason is merely a pretext for discrimination. Shapiro v. Social Security Administration, EEOC Request No. 05960403 (December 6, 1996). Complainant can do this by showing that the agency was motivated by a discriminatory reason. Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In the present case, complainant has failed to meet that burden. The evidence that complainant submitted to support her claim of age and gender discrimination is not strong enough to establish that the agency's articulated reasons were pretextual. Regarding the first issue, complainant failed to show that other employees were granted from five to six and a half hours of official government time to leave the work premises and prepare for a co-worker's party. Regarding the second, third, fourth, and fifth issues, complainant failed to submit evidence which would indicate that someone outside of her protected group was treated more favorably than she. In each instance, the evidence she provided indicated that two employees, both within her protected group with respect to age and sex, was treated better than she was. While such proof may indicate that there are some problems between complainant and the ADO, it certainly does not indicate that she was discriminated against on the bases of age and sex. As such, we find that complainant did not prove that the reasons articulated by the agency constitute an effort to mask discriminatory animus. Harassment - Reprisal Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). In the present case, complainant alleged six incidents of harassment; five based on age and sex, one (i.e., inappropriate remark after she filed her first formal complaint) based on age, sex, and reprisal. Because the Commission has determined that the first five incidents were not based on age and sex, supra, those issues will not be revisited here. The sixth issue, the inappropriate remark about women holding grudges longer than men, did not rise to the level of harassment. Instead, it was nothing more than a mere offensive utterance and, as such, not severe enough to trigger a Title VII violation. CONCLUSION 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 hereby AFFIRM the final agency decision. 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: January 7, 2000 Carlton M. Hadden, DATE 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: 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. 2 Sex and age were the alleged bases. 3 Sex, age and reprisal were the alleged bases. 4 According to complainant, the Controller had previously allowed an Hispanic male (unspecified age) and two females, both under 30 years of age, to use three hours of official government time to prepare for a co-worker's retirement party. 5 Complainant's affidavit indicated that she requested five hours. The affidavit of ADO indicated that she requested six and a half hours. 6 Both are female and over forty. 7 One of complainant's counterparts confirmed that she (complainant) was not given the documentation and told to get it from someone else; the other one, like the ADO, does not remember the incident. 8 These two requests came from members of the Budget and Accounting Office. One of the members was the female supervisor (age 46), one of complainant's two counterparts, and therefore a comparator, of the Budget/Accounting Office. The other member (male, age 29), was employed as a Supervisory Operating Accountant under the supervision of the Budget/Accounting supervisor. 9 The Commission notes that, for some reason, the investigator failed to ask the Budget and Accounting supervisor about the "surplus funds/training" incident. 10 Most of the witnesses in this case, including complainant, seemed to indicate, some more indirectly than others, that the problems between the ADO and complainant stemmed from a personality conflict. 11 The sixth issue, i.e., inappropriate comment, will be addressed under an harassment analysis.