0120082254
08-15-2008
Bertha Christopher, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Bertha Christopher,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120082254
Agency No. EEODFS-07-0896-F
DECISION
On March 25, 2008, complainant filed an appeal from the agency's
final decision, dated March 19, 2008, 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.
BACKGROUND
During the relevant time, complainant worked as a Contact Representative
at the agency's Wage and Investment Unit in Austin, Texas. Believing that
she was subjected to discrimination, complainant contacted the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on race, sex,
and reprisal. The agency framed the claims as follows:1
(1) complainant's supervisor delayed signing off on a reasonable
accommodation request until June 8, 2007;
(2) in June 2007, management did not grant complainant a Special Act
award;
(3) on June 26, 2007, an acting supervisor provided complainant her
annual appraisal in front of a taxpayer and the rating by her first and
second level supervisors was not high enough;
(4) on June 24, 2007, complainant's supervisor did not approve sufficient
time for a leave request for jury duty;
(5) on July 30, 2007, complainant's supervisor interrupted her and tried
to have a counseling session;
(6) on September 26, 2007, complainant's supervisor disapproved her
request for annual leave on December 27 and 28, 2007;
(7) on November 2, 2007, complainant's supervisor counseled her about
increasing her production of High Income Non-Filing (HINF) cases;
(8) on November 5, 2007, complainant's supervisor changed her lunch
schedule; and
(9) on January 3, 2008, complainant's supervisor issued a mid-year review
with lowered ratings.
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). In accordance with
complainant's request, 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.
As an initial matter, the agency dismissed claims (1), (5), (7), and
(8) for failure to state a claim. Claim (5) was also dismissed for
alleging a preliminary step to a personnel action is discriminatory.
However, since a full record was developed, the agency also addressed
the claims on the merits. Additionally, the agency considered whether
all the incidents together constituted a hostile work environment.
The agency concluded that complainant failed to show that she was
subjected to discrimination. With respect to each action, the agency
found that management officials provided a legitimate, non-discriminatory
reason and that complainant failed to show pretext. Specifically,
in claim (1), the agency denies that there was a delay in the response
to complainant's request for a reasonable accommodation. According to
the agency, complainant's supervisor made the decision on the request
the same week that he received the report from the agency's physician.
Regarding the denial of an award, claim (2), the agency explained
that complainant's supervisor misspoke when he said that complainant
would be receiving an award. Instead he recommended complainant for
consideration and a higher level official decided not to select her.
Regarding claim (3), the agency asserted that the acting supervisor
believed that complainant's supervisor had already shared the appraisal
with complainant, and that a signature was required. Consequently,
the acting supervisor gave it to complainant while she was on the
phone with a customer. With respect to the scoring on the rating,
the agency noted that after a meeting between complainant and her
supervisor, the appraisal was modified to reflect a higher rating.
As for the denial of sufficient time to attend jury duty, claim (4),
the agency explained that complainant's tour started at 7:00 a.m. and
she was required to report for jury duty at 11:00 a.m. Therefore,
the agency denied her request for 8 hours, and instead granted her
leave from 9:30 a.m. through the end of the day. Although complainant
categorizes the incident in claim (5) as "counseling," complainant's
supervisor asserts that he merely approached complainant's work area to
discuss a work-related matter. When she stated that she was busy, he
left and later provided her a note about it. Similarly, in claim (7),
the agency did not consider the incident to be "counseling." Instead,
the agency stated that complainant's supervisor explained to complainant
that by performing fewer unnecessary procedures production would increase.
The agency concluded that management also provided a legitimate reason
for initially denying complainant's request for leave for the two days
following her son's surgery (claim (6)), namely the workload of the
office at that time. Moreover, the agency asserted that as soon as
complainant provided a medical statement linking the additional days off
to monitoring her son's post-op condition, the leave request was approved.
In claim (8), complainant asserted that her lunch schedule was changed.
The agency challenged complainant's view of the event, finding that
complainant's scheduled lunch was 11:30 and the supervisor commented on
complainant taking lunch at 11:00. Further, when complainant requested
a change to 11:00, the supervisor granted the modification.
The agency concluded that the events raised by complainant were not
sufficiently severe or pervasive to create a hostile work environment.
According to the agency, complainant failed to show that her race, sex
or prior EEO activity was the motivation for the agency's actions.
CONTENTIONS ON APPEAL
On appeal, complainant argues that claims (1), (5), (7), (8), and (9)
state a claim. Without further elaboration, complainant contends the
agency improperly dismissed the claims. Additionally, complainant
asserts that she is entitled to compensatory damages.
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the instant case, we agree that the agency has proffered legitimate,
non-discriminatory reasons for its actions. Complainant has failed to
show that the agency's reasons were pretext for discrimination. In her
affidavit, complainant has not established a nexus between the alleged
incidents and her race, sex, or prior EEO activity. For example, in claim
(2), while complainant asserts her supervisor's failure to provide her a
Special Act Award was discriminatory, the supervisor attests that when
he was asked for names, he nominated complainant and three others for
the award, but that upper management did not ultimately select her.
Moreover, the Commission agrees that in many of the claims complainant
has failed to state a claim, or the matter has been rendered moot.
For example, while complainant viewed some of the interactions with her
supervisor as "counseling," (claims (5) and (7)) there is no indication in
the record that the incidents were recorded or made part of her personnel
file. Instead we find that complainant's supervisor was providing
complainant with instruction and feedback as is normal business practice.
There is no evidence that the incidents resulted in an adverse action
or were sufficiently severe to create a hostile work environment.
Further, with regard to her leave requests (claims (4) and (6))
complainant was ultimately granted additional time when additional
information was furnished. Based on the instant record, there is no
indication that the initial denials were discriminatory. Instead we find
management's response to be reasonable and legitimate (i.e., granting
only 1 1/2 hrs to travel from work to jury duty and allowing only one
day to accompany son for oral surgery during time of large workloads).
Similarly, as to her lunch schedule (claim (8)), complainant acknowledges
in her affidavit that she does currently have an 11:00 a.m. lunch.
Therefore, we find that complainant has failed to meet her burden
of establishing that the agency's proffered reasons were pretext for
discriminatory animus. The record does not show that the agency's actions
were motivated by complainant's sex, race or prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 15, 2008
Date
1 It appears that the initial complaint was comprised of claims (1)
through (5), and that the remaining claims were the result of subsequent
amendments.
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0120082254
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082254