Cassidy -v- Citigroup (Represented by Matheson, Ormsby, Prentice - Solicitors)
1. DISPUTE
This dispute involves a claim by Ms. Cassidy that she was discriminated against and harassed by Citigroup on grounds of age in terms of section 6(2) of the Employment Equality Act, 1998 and in contravention of sections 8 and 32 of that Act on a continuous basis since December 2002.
2. BACKGROUND
2.1 The complainant is employed as a Senior Service Representative in the respondent's Trustees Department since 2 April, 2001. Prior to that, from 4 January, 1999, she worked as a Credit Analyst in the respondent's Diner's Club Division. The complainant contends that (i) she was passed over for promotion in early 2003 in favour of younger, less experienced colleagues, (ii) she was presented with a contrived and unwarranted performance appraisal in respect of 2002, (iii) she was harassed by her Line Managers and (iv) the investigation conducted in response to her complaint under the respondent's Internal Grievance Procedure was flawed and biased against her.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 8 May, 2003. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. A Preliminary Hearing was held on 4 February, 2004 as the complaint also included a claim for equal pay, which has been the subject of a separate decision. Written submissions were received from both parties and a Final Hearing took place on 18 May, 2004. A number of issues emerged at the hearing which gave rise to further correspondence with the parties subsequent to the hearing. This process concluded on 8 May, 2005.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is employed as a Senior Service Representative in the respondent's Trustees Department since 2 April, 2001. Prior to that, from 4 January, 1999, she worked as a Credit Analyst in the respondent's Diner's Club Division. In late 2001 she applied for a post as Trust Officer, which is a promotional post, and was unsuccessful. She states that whilst accepting the outcome she formed the view that something "was amiss" with regard to her as a result of comments made to her by colleagues and a definite lack of eye contact between her and Senior Managers at the time. In order to improve her future promotion chances she commenced a course of work related study with the Institute of Bankers and successfully completed the course. She states that in December, 2002 she applied again for a post as Trust Officer on foot of an advertisement on the respondent's website, which she came on by chance. She adds that it was normal practice for vacancies to be advised to staff by Senior Managers and the fact that this did not happen gave credibility, in her view, to her belief that something was amiss. The complainant states that nonetheless she applied for the position and e-mailed her application to her Head of Unit (Ms. Emerson) and copied it to Ms. O'Hehir (Senior Vice President, Global Controls) and Ms. Cecilia Ronan (Senior Vice President, Human Resources). The complainant adds that it was part of the competition process to discuss her application with her Line Manager. As Ms. Emerson was on annual leave the complainant e-mailed Ms. O'Hehir to arrange a meeting to discuss her application. The complainant states that this meeting was scheduled for 12 December, 2002 but was cancelled by Ms. O'Hehir at short notice. The complainant adds that she heard nothing further about her application from any of her superiors and the matter did not resurface until February, 2003 when it was announced that two of her colleagues, both younger than her, had been promoted to Trust Officer positions.
3.2 The complainant contends that in order to cover up the fact that it ignored her promotion application the respondent produced a false and contrived Performance Appraisal ranking of her in respect of 2002, giving her a ranking of Inconsistent Performer. The complainant contested the ranking and refused to sign the appraisal form. She submits that had she been underperforming during the year this shortcoming would have would have been addressed during the year and this was not the case - she states that the only issue about which she was spoken to was absenteeism. The complainant adds that around the same time she was harassed by her Manager Ms. Nicola Byrne in that she shouted at her, treated her in an undermining and bullying manner in front of her colleagues and that she assigned her colleagues higher quality work, although when she confronted Ms. Byrne about her bullying behaviour she apologised and it didn't reoccur.
3.3 The complainant states that as a consequence of the totality of the alleged treatment of her by the respondent she invoked the respondent's Internal Grievance Procedure by e-mailing Ms. Ronan on 21 February, 2003. This investigation process culminated in a meeting between the complainant, Ms. Ronan and Ms. O'Hehir on 27 March, 2003. The complainant was not satisfied with the outcome of the investigation and decided to appeal the decision in accordance with the procedure. She advised the respondent of this by e-mail on 28 March, 2003, although she subsequently withdrew this appeal and availed of her statutory right to bring her complaint to this Tribunal, on the basis that she believed the process to be flawed and biased against her.
3.4 The complainant alleges that other incidents support her contention that she was discriminated against. In August, 2003 she contends she was excluded from an official function, although other colleagues attended. She further alleges that in January, 2004 a number of vacancies were announced by the respondent and were advertised on the website. She states that the criteria for Trust Officer had changed again - requiring three years' relevant experience - a requirement she fell short of by a number of weeks. She compares this to a similar position advertised on another website which requires 2/3 years' relevant experience. She contends that this demonstrates a practice on the respondent's part to deliberately exclude her from promotion. The complainant adds that she submitted a discussion document to another Manager Ms. Bronwyn Wright concerning aspects of IT process and statutory compliance and that this document was ignored. In conclusion, the complainant submits that the alleged treatment of her by the respondent constitutes less favourably treatment and harassment of her on grounds of age contrary to the Employment Equality Act, 1998.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that she was discriminated against and harassed on grounds of age contrary to the Employment Equality Act, 1998. It accepts that the complainant applied for the position of Trust Officer in December, 2002, that Ms. O'Hehir arranged to meet with her to discuss her application, that this meeting was cancelled at short notice by Ms. O'Hehir that and it was never re-arranged. It states that Ms. O'Hehir subsequently apologised to the complainant for this omission. The respondent states that typically vacancies within the organisation would be advised to employees at staff meetings, which generally took place on a weekly basis. The respondent accepts it is entirely possible that the vacancies in question were not communicated to the complainant through this channel for a number of reasons - she may have been absent and not attended the meeting. However, it adds that the vacancies were placed on the internal website and it submits that the complainant was not therefore disadvantaged in relation to same.
4.2 The respondent agrees that the complainant was unsuccessful at this time stating that her performance during the year (2002) - a year she was absent from work for a considerable amount of time - as assessed by her Head of Unit, Ms. Emerson, did not warrant progression. In this regard the respondent submits that the complainant's mid year review was poor and that her poor performance was raised with her on a number of occasions during the year. It states that promotion in the organisation is based solely on performance and rejects the complainant's assertion that her age was a factor in her failure to secure promotion. The respondent adds that as a result of the promotion practice in the organisation being linked to performance, substantive promotions only take place in January/February of each year, following the outcome of the appraisal process, although in some cases employees may have been performing some of the duties for a period prior to that. It accepts that the complainant's colleagues who were appointed to the position of Trust Officer in early 2003 were both younger than her. However, it states that their progression was warranted in both cases, one of them receiving the ranking of "Top Performer" and the other "Strong Performer" in their appraisals for 2002. The respondent adds that both of these employees had effectively been performing higher duties, following the mid-year review, from August, 2002.
4.3 The respondent rejects the complainant's assertion that her performance appraisal and ranking of "Inconsistent Performer" was contrived in an effort to cover up the fact that it ignored her application for Trust Officer. It states that the complainant's performance throughout the year was poor. It contends that these shortcomings were discussed or raised with the complainant on a number of occasions during the year both by her Manager, Ms. Byrne and her Head of Unit Ms. Emerson. It adds that these factors also influenced their decision in the assignment of particular work to particular employees. The respondent states that the complainant was absent for a significant period of time during the second half of 2002 and therefore the possibility for corrective action was limited. It adds that Ms. Emerson prepared a draft Performance Appraisal for the complainant and sent it to her in advance of them meeting in early 2003. The purpose of the meeting is to discuss the draft and to amend it, if appropriate. The respondent states that complainant was not satisfied with her ranking and refused to sign off on the form. She subsequently invoked the company's Internal Grievance Procedure in respect of this and other issues. Following this process the respondent offered to upgrade the complainant's ranking to "Consistent Performer". However, she remained dissatisfied and subsequently withdrew from the process and referred her complaint to the Equality Tribunal.
4.4 The respondent denies that Ms. Byrne harassed the complainant in any manner contrary to the Act. It states that given the working environment and the pressure of work it was sometimes not possible to walk to somebody's desk with a query, rather the person would stand up and ask the question without leaving their own desk, which may have necessitated raising one's voice. The respondent accepts that Ms. Byrne operated this process on occasion, but emphasises that it was never intended in a demeaning way. The respondent adds that in any event, when the matter was raised by the respondent with Ms. Byrne, she apologised and the behaviour did not reoccur. The respondent submits therefore that such behaviour does not constitute harassment of the complainant under the Act.
4.5 The respondent states that on receipt of the complainant's e-mail of 21 February, 2002 by Ms. Ronan, she immediately commenced the Internal Grievance Procedure. This involved a series of e-mails and discussions with the complainant to clarify some matters and a number of interviews with the complainant's colleagues, seeking information in respect of specific allegations which had been made by the complainant. This process culminated in a meeting between the complainant, Ms. Ronan and Ms. O'Hehir on 27 March, 2003 during which the respondent states, the complainant was told her performance ranking would be upgraded to "Consistent Performer", she would consequently receive a pay adjustment of 3.5% that year and that the outcome of the investigation was that she was not discriminated against. These matters were confirmed to the complainant by e-mail on 9 April, 2003. The respondent states that she subsequently withdrew from the process and pursed the matter to the Tribunal. The respondent states that it ceased its internal process in the circumstances and submits that its investigation of Ms. Cassidy's complainant through the Internal Grievance Procedure was conducted in a timely, professional and impartial manner and was not in any way biased toward her.
4.6 The respondent accepts that a night out was organised on 14 August, 2003 for staff who had worked on a particular project. It states however, that the invitation list was restricted to personnel who had worked full-time on the project. It accepts that the complainant was not on the list and contends that it is for the foregoing reason. It is unsure whether or not this was communicated to the complainant as she was on sick leave for a period immediately after the event. The respondent states that it is subject to scrutiny by the Irish Financial Service Regulatory Authority (IFSRA) and in that regard must demonstrate that personnel have sufficient experience to deal with certain levels of funds. The advertisement for vacancies at Trust Officer level in 2004 had regard to that obligation. The respondent submits that it is free to decide its own criteria for posts in the company, that it is not tied to criteria used by other organisations for what may appear to be similar posts and finally that it has never used the services of the company referred to by the complainant. It submits therefore that it did not discriminate against the complainant in respect of this matter. Finally, Ms. Wright acknowledged that the complainant had e-mailed her an unsolicited document on IT solutions in compliance areas. Ms. Wright states that she subsequently "bumped into" the complainant in the canteen at lunchtime during which she told her she (Ms. Wright) had no authority to make decisions on the issue and in any event that the essence of the suggestion was already in existence. Ms. Wright adds that she considered that to be the end of the matter.
4.7 In conclusion, the respondent submits that it did not discriminate against or harass the complainant in respect of any aspect of her employment on grounds of age, or otherwise. It adds that insofar as her career with the respondent has not progressed as she would have wished, this has been due to deficiencies in her performance which have been identified to her in a reasonable and fair manner and in relation to which the respondent is entitled to exercise its judgement.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not Ms. Cassidy was discriminated against and harassed by Citigroup on grounds of age in terms of section 6(2) of the Employment Equality Act, 1998 and in contravention of sections 8 and 32 of that Act on a continuous basis since December, 2002. In reaching my decision I have taken into account all submission, both oral and written, made to me by the parties.
5.2 Section 6 of the Act provides that discrimination will be taken to have occurred "where on any of the.... 'discriminatory grounds' one person is treated less favourably than another is, has been ...." Section 8 of the Act provides that:
"(1) In relation to --
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee..."
Section 32 of the Act defines harassment as follows-
"(5) For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C."
5.3 It is the established approach of this Tribunal and the Labour Court in cases of alleged discrimination under the Employment Equality legislation that the complainant must, in the first instance, establish facts from which it can be inferred that s/he was discriminated against. It is only when the complainant has discharged that obligation to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.4 The first issue raised by the complainant relates to her application for promotion to the post of Trust Officer in December, 2002. The respondent states that promotion with the company is based on an employee's performance and the ranking achieved through the appraisal scheme and I am satisfied that this is the case. This means that the complainant's appraisal ranking in respect of 2002 would dictate whether or not she was considered suitable for promotion at that time. I note the respondent states that only employees who achieve rankings of Top Performer (1), Strong Performer (2) or Consistent Performer (3) are considered suitable for promotion and within this pool those with the higher ranking are more likely to attain progression. The complainant was ranked as Inconsistent Performer (4) by her Head of Unit in respect of 2002. The complainant contends that the ranking was contrived and unjustified. She further contends that the promotion of two of her younger colleagues to positions as Trust Officer constitutes discrimination of her on grounds of age. I have examined the documentation submitted by the respondent in respect of these two employees and the complainant. I note that the complainant's mid-year review for that year was not favourable. I further note the spreadsheet submitted by the respondent detailing the number of errors recorded against the complainant and other employees during the latter part of the year in respect of their specific areas of work, which indicates a higher level of error by her. This overall level of performance is supported by contemporaneous notes of difficulties with her work produced by Nicola Byrne, the complainant's manager, during the latter part of the year in particular. Whilst the process may not have been ideal and formally structured as one might like, I am satisfied, on balance, that there were problems with the complainant's performance during this time and that she was aware of this.
5.5 I have also examined the appraisal documentation in respect of the two employees promoted in January/February, 2003 referred to in the previous paragraph. This documentation supports the respondent's comment that one of them received a ranking of Top Performer and the other Strong Performer in respect of 2002. Consequently, they were both eligible for promotion in accordance with the policy operated by the respondent. The complainant did not receive a ranking which qualified her for promotion and she has not adduced any evidence to support her contention that this ranking was contrived by the respondent in an effort to effectively cover up the fact that it deliberately ignored her application because it wanted to preclude her from promotion. I note the respondent's acceptance that the manner in which it communicated with the complainant around this time was far from ideal and I would concur with the point of view. I cannot however, accept the complainant's assertion that this shortcoming or omission was premised on her age. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination on grounds of age in respect of her failure to secure promotion in late 2002/early 2003. However, I would strongly suggest that the respondent examine its channels of communication in this area with a view to ensuring that they operate more efficiently and effectively in the future.
5.6 I note the complainant's assertion that her Manager Ms. Nicola Byrne began to harass her around that time, in that she shouted at her without leaving her desk. I further note that when she raised this matter with Ms. Byrne she apologised for her behaviour and that she did not raise her voice to the complainant again. I also note Ms. Byrne's evidence at the hearing which gives a good impression of the physical layout of the working area and an insight into the level of pressure in that environment, a scenario which was not disputed by the complainant. In the circumstances I cannot accept that this behaviour constitutes harassment of the complainant on grounds of age contrary to the Act.
5.7 I shall now deal with the issue concerning the respondent's Internal Grievance Procedure. I note the complainant informed Ms. Ronan by e-mail on 21 February, 2003 that she wished to invoke the company's Internal Grievance Procedure in respect of a range of issues about which she had concerns - including allegations of bullying/harassment, lack of promotion, an unjustified appraisal ranking and in general a campaign by "a cohesive group of middle to senior managers who have decided she was surplus to requirements". Ms. Ronan responded to her the next day, again by e-mail and the process commenced. A number of e-mails flowed between the parties and on 7 March, 2003 the complainant set out in greater detail the nature of her complaint in an e-mail to Ms. Ronan. I note that she replied to the complainant later that day and commenced the process of interviewing the complainant's colleagues. The interviews commenced on 12 March, 2003 and were conducted by Ms. Ronan and Mr. Chris Collins. All interviewees were asked the same four questions and I am satisfied that these questions are consistent with the relevant concerns of the complainant as set out in her e-mail of 7 March to Ms. Ronan (it should be noted that some of the issues raised by the complainant referred to confidential matters). Copies of the statements, along with the original notes where available, were furnished to me. I note that in all ten of her colleagues were interviewed and the interviews were completed by 18 March, 2003. The finding of the investigation was that the complainant was not being bullied or harassed and I am satisfied that this finding is consistent with the interview notes furnished to me. The notes did highlight that there were general difficulties between Management and staff in the area, in particular comments were made about certain Manager's "management style". It appears to me from the notes that Senior Managers could be brusque and stand-offish with the majority of staff in the area, which included the complainant and on occasion could be rude. Such an approach undoubtedly creates problems with staff and is far from ideal in attempting to motivate staff to higher levels of performance, an objective which the respondent indicated it is anxious to attain. However, I am not satisfied that it gives rise to any inference of less favourable treatment of or harassment of the complainant on grounds of age.
5.8 The investigation process culminated in a meeting between the complainant, Ms. Ronan and Ms. O'Hehir on 27 March, 2003. During this meeting the respondent offered to upgrade the complainant's appraisal ranking for 2002 to Consistent Performer and as a result of same, she would receive a 3.5% pay rise. The complainant subsequently declined this offer. I am satisfied, on balance, that the complainant was also made aware of the outcome of the investigation at this meeting, although given the circumstances it is likely that the significance of same did not register with her at that moment. In any event the respondent confirmed this point by e-mail on 9 April, 2003, subsequent to which the complainant withdrew her previously advised appeal of the investigation outcome. I am satisfied that the respondent treated Ms. Cassidy's complaint in a timely, professional and impartial manner, that the process was thorough and that it was not in any way biased against her. I find therefore that the complainant has failed to establish a prima facie case of discrimination on grounds of age in respect of the application and operation of the Internal Grievance Procedure to her complaint.
5.9 It is common case that the complainant was not invited to the night out on 14 August, 2002. At the hearing the respondent stated that the invitation list was restricted, although Ms. Emerson - who was responsible for compiling the list of invitees from her area was unsure who was included on the list and was also unsure whether or not she had spoken to the complainant in response to the e-mail of 15 August. The complainant is unable to indicate, with the necessary degree of certainty, those of her colleagues who attended the function, let alone those who were invited. In the circumstances I cannot accept that the complainant was treated less favourably on grounds of age in this matter, although I believe it is another example of the poor management style in the department. I accept fully the respondent's right to establish its own criteria for posts within it. The fact that another organisation may operate higher or lower requirements for similar posts does not constitute less favourable treatment of the complainant contrary to the Act. For completeness on this issue, I note that whilst the respondent may consider the complainant competent in the context of IFSRA compliance, this does not in my opinion, translate into an acceptance by it that she is suitable for promotion. Finally, I am inclined, on balance to accept Ms. Wright's version of events in respect of the IT document and consequently do not consider the issue to constitute discrimination of the complainant contrary to the Act.
5.10 In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination or harassment contrary to the Act and consequently her claim must fail.
6. DECISION OF THE EQUALITY OFFICER
I find that the complainant has failed to establish a prima facie case of discrimination or harassment contrary to the Act and consequently her claim must fail.
_____________________________________
Vivian Jackson
Equality Officer
26 September, 2005