0120072335
08-03-2009
Eileen D. Richardson, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Eileen D. Richardson,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120072335
Hearing No. 280-2006-00019X
Agency No. 030206F
DECISION
On April 11, 2007, complainant filed an appeal from the agency's March
12, 2007 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 accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Customer Service Representative (CSR), GS-962-8, with the IRS's
Wage & Investment Office, Accounts Management Operations, in Overland
Park, Kansas.
On February 28, 2003, complainant was placed on leave restriction.
The agency asserted that the leave restriction was necessary because
within a six-year time frame complainant used almost all of her annual
leave, several hours of Leave Without Pay (LWOP), and had a sick leave
balance of negative 2 hours. On August 27, 2003, complainant's supervisor
extended her leave restriction for another six months.
On April 1, 2003, complainant was issued a 60-day opportunity letter.
According to her manager (M1), complainant was issued the letter for
her poor performance. As a result, complainant was placed on "100
percent review." Further, during the 60 days, complainant was denied a
within-grade increase, a career-ladder promotion, and overtime. When the
letter expired after 60 days, complainant was issued a second opportunity
letter on June 2, 2003, which was also based on poor performance.
In August 2003, complainant was pregnant and requested a downgrade in
position because she felt that the stress and harassment at work could
lead to a miscarriage. Complainant's request was subsequently denied.
On September 2, 2003, complainant's files were purged of her past
performance reviews. Further, on October 22, 2003, complainant was
charged Leave Without Pay (LWOP) by her supervisor. Complainant alleges
that she was at work that day, and she spent a portion of the day on
her EEO activity.
On July 3, 2003, complainant filed an EEO complaint alleging that she
was discriminated against and subjected to a hostile work environment
on the bases of race (Black), color (dark complexion), and in reprisal
for prior protected EEO activity under Title VII when:
1. On April 1, 2003, complainant was placed on a 60-day opportunity
letter;
2. On or about April through September 2003, complainant was issued
several case reviews that were almost three weeks old, she was incorrectly
charged errors and was not provided timely feedback;
3. On or about April through September 2003, complainant was directed
not to contact any other manager without prior approval from the immediate
manager or work leader;
4. Since April 2003, complainant has been denied overtime;
5. On August 27, 2003, complainant's supervisor extended her Sick
Leave Restriction Letter for six months;
6. Complainant has been denied a career-ladder promotion to the
GS-8 grade level since September 2003;
7. On September 3, 2003, complainant's within-grade increase (WIG)
was denied;
8. On September 3, 2003, complainant was issued an annual appraisal
that rated her "Unacceptable" in the Critical Job Elements II (Customer
Satisfaction- Knowledge) and IV (Business Results-Quality), and
rated her overall performance as "Unacceptable";
9. In October 2003, complainant's supervisor purged her employee
performance file
(EPF) of performance feedback during the EEO investigation of her
complaint;
10. On October 22, 2003, complainant's supervisor charged
complainant Leave
Without Pay (LWOP) even though she was at work that day;
11. In November 2004, complainant's supervisor disclosed confidential
information about complainant's work issues;
12. On December 2, 2004, complainant was issued a Mid-Year Review
that inaccurately assessed her performance as "Fully Successful";
13. On December 20, 2004, complainant was issued an annual appraisal
that inaccurately assessed her performance as "Fully Successful"; and
14. On January 4, 2005, complainant's supervisor demanded to know
why complainant's child was sick and why she needed the whole day off
to care for her child, and requested medical documentation to support
her child's doctor visit.
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). Complainant timely
requested a hearing but subsequently withdrew her request. Consequently,
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.
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").
Complainant alleges that she was subjected to disparate treatment and a
hostile work environment on the bases of race, color, and in reprisal for
prior protected EEO activity. 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, 143 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment based on race, color, or reprisal,
complainant must show that: (1) she is a member of the statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In the instant case, assuming, arguendo, that complainant established
her prima facie cases of race, color, and reprisal discrimination,
the agency articulated legitimate, non-discriminatory reasons for
its actions. Specifically, complainant was placed on leave restriction
because she used excessive leave, and her leave restriction was extended
because she continued to use excessive leave. Further, complainant
was failed in two of her critical job elements in her performance
review, and as a result, was placed on a 60-day opportunity letter.
Because she was placed on the opportunity letter, she was ineligible
for a within-grade increase, a career-ladder promotion, and overtime.
Complainant acknowledged that her performance reviews were purged as
part of regular agency practices. The agency denied complainant's
downgrade request because there were no vacancies available in the
position which complainant requested. Additionally, M1 does not recall
charging complainant for LWOP on a day that complainant worked, and
does not recall revealing confidential information about complainant.
Finally, the agency asserted that complainant's remaining allegations,
such as her records being purged and the assignment of old cases,
involved daily office situations and were not due to discrimination
against complainant because of her race, color, or EEO activity.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, non-discriminatory reasons were
pretext for discrimination. We agree with the agency that complainant's
allegations of discrimination were neither severe nor pervasive enough
to rise to the level of a hostile work environment. Further, the record
supports M1's assertion that complainant was treated according to agency
guidelines when she was placed on 60-day opportunity letters because of
documented poor performance, and as a result was denied a within-grade
increase, a career-ladder promotion, and overtime. The record also
supports the agency's assertion that complainant continuously used
excessive leave. Finally, we find that many of complainant's allegations
are merely every day office situations, and nothing in the record suggests
that any of the agency's actions were motivated by discriminatory animus.
Therefore, we find that complainant failed to establish that the agency's
legitimate, non-discriminatory reasons were pretext for discrimination,
or that she was subjected to a hostile work environment.
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
final order because a preponderance of the evidence of record does not
establish that discrimination occurred as alleged.
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
August 3, 2009
Date
2
0120072335
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120072335