Eileen D. Richardson, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 3, 2009
0120072335 (E.E.O.C. Aug. 3, 2009)

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