0120081872
08-25-2009
Bernice Smith, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Bernice Smith,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120081872
Agency Nos. OSH-005-06 & HHS-OS-0001-2007
DECISION
On March 18, 2008, complainant filed an appeal from the agency's February
19, 2008 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency's final decision (FAD) correctly found that complainant
failed to establish discrimination and/or retaliation, by a preponderance
of the evidence.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Investigations Analyst, GS-11, in Region V, Office of Inspector
General, Office of Investigations, Chicago, Illinois. On December 27,
2005 and July 28, 2006, complainant filed EEO complaints alleging that
she was discriminated against on the bases of race (African-American),
sex (female), and/or reprisal for prior protected EEO activity [arising
under Title VII] when:
(1) On March 3, 2005, she received a two day suspension;
(2) On or about June 2, 2005, one of her key work assignments was given
to another employee which reduced her work on a critical element of her
job;1
(3) On December 5-7, 2005, she received a three day suspension;
(4) On June 28, 2006, her first level supervisor required complainant
to swipe in and out at a specific door scanner to monitor her time;
(5) On June 28, 2006, her first level supervisor gave her a performance
evaluation (under his supervision less than 90 days), and commented
that if complainant did not perform to his satisfaction by the end of
September 2006, he would recommend termination although she had just
been selected for the position;
(6) On July 31, 2006, her first level supervisor proposed a five-day
suspension claiming complainant was tardy; and
(7) From April 4, 2006 forward, her first line supervisor scrutinized
her performance at a much higher level than others who worked for him,
and required complainant to produce more cases per week.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
The FAD specifically found that assuming complainant could establish
a prima facie case of discrimination on the alleged bases, the agency
had nevertheless articulated legitimate, nondiscriminatory reasons for
its actions. The FAD found that the challenged actions described in
issues (1), (3), (4) and (6) were taken because of complainant's failure
to request adequate leave to cover her numerous tardy arrivals and
unaccounted-for absences from work. The FAD found that the challenged
actions in (5) and (7) were based on complainant's failure to be
productive enough in her work performance (i.e. produce a high enough
number of cases). As to issue (2), complainant's claim that her key
work assignment was given to another employee, reducing her work on a
critical element of her job, the agency stated that this was actually
only a minor duty, and the change was made for the sake of increasing
efficiency of operations. The FAD further found that complainant had
not presented any persuasive evidence that management's reasons were
merely pretexts for discrimination.
CONTENTIONS ON APPEAL
Complainant has not presented any new arguments on appeal. The agency
asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this
directly by showing that the agency's proferred explanation is unworthy
of credence. Burdine, 450 U.S. at 256.
Assuming complainant could establish a prima facie case of discrimination
and/or retaliation as to all of her claims, the agency has articulated
legitimate, nondiscriminatory reasons for management's actions. In an
attempt to establish pretext, complainant describes what she views as
legitimate reasons for being tardy or absent from work, and asserts that
the agency cannot prove exactly when she was absent or tardy. On the
issue of her job performance, she contends that she should not have
been expected to produce so many cases. The Commission finds however,
that complainant has not shown, by a preponderance of the evidence, that
the agency's reasons are mere pretexts for discrimination. There is
simply no persuasive evidence that establishes that complainant's race,
sex or prior EEO activity played a role here.2 In so finding, we note
that we do not have the benefit of an AJ's findings after a hearing,
and therefore, we can only evaluate the facts based on the weight of
the evidence presented to us.
Accordingly, based on a thorough review of the record, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_________08/25/09______
Date
1 On April 13, 2006, the agency issued a final decision addressing Agency
No. OSH-005-06, namely, issues (1) and (2) above. The decision dismissed
issue (1) on the basis of untimely EEO counselor contact, and issue
(2) on the basis of failure to state a claim. In Smith v. Department
of Health and Human Services, EEOC Appeal No. 0120063463 (September 15,
2006), the Commission reversed the agency's final decision dismissing the
complaint and remanded the matter to the agency for further processing.
Subsequently, the agency consolidated the remanded complaint with Agency
No. HHS-OS-0001-2007, and a new FAD was issued addressing both complaints,
which complainant now appeals.
2 Although complainant may believe that management acted unfairly in not
accepting her explanations for being tardy or absent or acted unwisely in
expecting her to produce so many cases, the discrimination statues offer
no protection against unwise or unfair personnel decisions, only those
that are discriminatory. As long as the agency's decisions were not
discriminatory, the Commission will not reverse the agency's actions.
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0120081872
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081872