01983506
04-24-2000
Judy E. Holland, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Judy E. Holland v. Department of the Treasury
01983506
April 24, 2000
Judy E. Holland, )
Complainant, )
)
v. ) Appeal No. 01983506
) Agency No. TD97-4169
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
______________________________)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (EEOC) from the final decision of the agency
concerning complainant's claim that the agency violated 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, 42 U.S.C. � 791 et
seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. The appeal is accepted in accordance
with 64 Fed.Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).<1>
ISSUES ON APPEAL
The issues on appeal are:
(1) whether the agency discriminated against complainant on the bases of
physical disability (rheumatoid arthritis), sex (female), and reprisal
(prior EEO activity) when, on January 2, 1997, she was rated "minimally
successful" for the time period of October 1, 1995 to November 30,
1996; and,
(2) whether complainant was discriminated against on the bases of
disability, sex, reprisal, and age (over 40) when, effective March 3,
1997, she was reassigned from her GS-512-13 Supervisory Revenue Agent
(RA) position to a non-supervisory RA position.
BACKGROUND
The record shows that complainant filed a formal EEO complaint on April
10, 1997 raising the issues stated above. The complaint was investigated
and complainant was issued a copy of the Report of Investigation (ROI).
Complainant then requested a final agency decision (FAD) without
an EEOC hearing. The FAD was issued and found no discrimination.
Complainant now appeals the FAD.
In December 1994, complainant was transferred to a Group Manager (GM)
position in the agency's Examination Division, Central California
District.In February 1995, complainant was assigned to the Oxnard
post-of-duty (POD) as a GS-13GM under the supervision of the Branch
Chief (the Chief) (over 40, male, nondisabled), who is the responsible
management official herein. On May 23, 1996, complainant raised, with
the agency's Chief, EEO and Diversity, allegations of sexual harassment
concerning the Chief and other males employees in her office; these
allegations are not at issue herein.
On June 26, 1996, complainant received a written, non-formal, performance
review (the Review) in which the Chief identified several areas of concern
with complainant's performance, among them complainant's alleged failure
to perform case visits with trainees and on-the-job instructors, failure
to consult with other managers regarding the coordination of issues,
and the failure to provide support for other managers and management
in general. The Review also made specific reference to complainant's
prior EEO activity and stated, generally, that it had disrupted the
office and made it "difficult or impossible for (the Chief) to maintain
the effective operation of (complainant's) group." The Review also made
specific reference to complainant's various complaints regarding the
alleged bias of the Chief against women in the office and to the effect
that these complaints had on the office's relationship with the Union.<2>
On July 11, 1996, the Chief issued a revised Review which indicated
that references in the prior Review to complainant's EEO activity were
removed and that the Chief did not wish to discourage her from raising
sexual harassment complaints.
From June 1996 until December 1996, the Chief issued several negative
memoranda regarding complainant's performance. On December 3, 1996
complainant was placed on an "opportunity period." On January 2, 1997,
the Chief gave complainant her performance rating (the Rating) for
the rating period of October 1, 1995 to September 30, 1996. In the
Rating, complainant received "Met" for the three critical elements
in the appraisal and an overall rating of "Minimally Successful"
because her performance was ". . . seriously impaired by a number of
incidents which demonstrated a lack of good judgment and discretion."
This included instigating Union distrust of branch management policies,
misrepresentation of branch and district management intentions and
decisions to group employees ..."<3> For the rating period of October 1,
1994 to September 30, 1995, complainant had received from the Chief one
"Met" and two "Exceeds" for the three critical elements, overall favorable
comments, and a performance rating of "Fully Successful." On March 3,
1997, complainant was involuntarily reassigned to a non-supervisory RA
position in the agency's Santa Barbara, POD.
The agency found that complainant established a prima facie case of sex
and reprisal discrimination but not of disability and age discrimination.
The agency also found that it articulated legitimate, nondiscriminatory
reasons for complainant's rating and her reassignment. Specifically,
the agency stated that complainant received the Rating because of the
problems with her management skills as specifically referenced above
in the discussion of the Review. The agency also cited complainant's
insubordination and refusal to follow branch and division management
direction. According to the agency, the Chief first noticed the problems
with complainant's performance in April 1996.
Finally, the agency found that complainant failed to prove pretext. The
agency stated that while the original Review's mention of complainant's
EEO activity may have been inappropriate, the Chief revised the Review
and there was no nexus between the comments and management's actions
regarding complainant's rating or reassignment. The agency stated that
the totality of complainant's behavior, including "her statements to
employees that managers were taking action because they were biased
against her and women in general," caused discord in the workforce.
FINDINGS AND ANALYSIS
Complainant's claim constitutes a claim of disparate treatment which the
agency analyzed under the three-tiered analytical framework outlined
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Dept. of
Community Affairs v. Burdine, 450 U.S.248, 253-256 (1981). See also
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F.Supp 318 (D.Mass), affirmed, 545 F.2d 222 (1st Cir. 1976); Burrus
v. United Telephone Co. of Kansas, Inc., 683 F.2d 339 (10th Cir. 1982),
cert. Denied, 459 U.S. 1071 (1982).
After a very careful review of the record and applying these legal
standards, the Commission finds that complainant failed to prove, by a
preponderance of the evidence, that she was discriminated against on
the bases of sex, age or disability. Even assuming that complainant
established that she were disabled and established an inference of sex,
age and disability discrimination, we find no evidence that complainant's
gender, age or alleged disability was the reason for the Chief's decision
to rate complainant poorly or to reassign her.
Regarding complainant's reprisal claim, we initially note that the
anti-retaliation provision makes it unlawful to discriminate against an
individual because she has opposed, as complainant did, any practice
made unlawful under the employment discrimination statutes. See EEOC
Compliance Manual, Number 915.003, p. 8-3 (May 20, 1998). We find that
complainant proved, by a preponderance of the evidence, that she was
discriminated against on the basis of reprisal. It is Commission policy
that if there is credible direct evidence that retaliation was a motive
for a challenged action, a finding of reprisal discrimination should
be found. See supra 8-16 (May 20, 1998). Here, we find direct evidence
of reprisal first, in the initial Review, when the Chief specifically
stated that complainant's EEO activity was, in part, responsible for
the poor review. The substance of this Review served as a basis for the
Rating and complainant's eventual reassignment. While the Chief may have
"revised" the Review, the original version nonetheless shows his mindset
and intentions at the time.
Moreover, notes contained in the record from a meeting, held by
various management officials prior to the Rating indicate discussion
regarding the Chief's position that he could not give complainant a fair
opportunity period because of her comments and behavior towards him with
regard to what he viewed as unfair and unsubstantiated comments about
sexual harassment in the office. Management officials also apparently
informed the Chief at the meeting that he had a "weak case" for rating
complainant "minimally successful."
There is also indirect evidence of reprisal discrimination. Complainant
made sexual harassment claims against the Chief in May 1996; beginning
in June 1996 the Chief began formally criticizing complainant's
performance which culminated in the"minimally successful" rating and the
reassignment. Complainant responded to many of the formal criticisms
and we find her responses to be largely credible. In addition, the
most critical comments in the Rating, which were used as a basis for
the reassignment, focus primarily on complainant's instigation of
Union distrust of branch management policies, and misrepresentation
of branch and district management intentions and decisions to group
employees. There is little objective discussion of the specific
deficiencies in complainant's performance.
Finally, we note that there is no evidence that, prior to June 1996, the
Chief had any previous problems with complainant's performance noris there
evidence that complainant's performance was severely criticized under
any prior agency supervisor. In fact, in complainant's prior performance
review, the Chief's comments about complainant's work were glowing.
In short, we find that there is more than enough record evidence on which
to base a finding of reprisal discrimination. We find that retaliation
on the part of the Chief was responsible for the agency's actions. The
agency failed to prove that absent the reprisal discrimination,
complainant would have received the same treatment. Therefore, the
agency is ordered to take the following remedial actions in accordance
with the ORDER below.
ORDER (E1199)
The agency is ORDERED to take the following actions:
1. Within ninety (90) days of the date this decision becomes final, the
agency shall offer complainant placement in a GS-512-13 RA Group Manager
position in the Examination Division, Central California District if
she still desires to work in that division. If complainant wishes to
work in another Division, the agency shall offer her another GS-512-13
RA Group Manager position in an office that is compatible to the agency
and to the complainant. The agency shall ensure that complainant is
not directly or indirectly supervised by the Chief. Complainant shall be
awarded all appropriate benefits and awards, retroactive to the date of
her reassignment, that she would have received absent the discriminatory
reassignment to a non-managerial position.
2. Within sixty (60) days of the date this decision becomes final,
complainant's performance appraisal for 1995-1996 shall be changed to the
performance rating complainant received from the Chief the previous year
- a"fully successful" overall rating with at least two "exceeds" on the
three critical elements. The negative comments regarding complainant's
performance, contained in the discriminatory performance appraisal,
shall be removed and more favorable comments shall be included. To the
extent that complainant would have qualified to receive a monetary award
as a result of the upgraded appraisal, the agency shall include such
monetary award in the restoration of complainant's benefits that she
lost as a result of the discrimination.
3. Within sixty (60) days of the date this decision becomes final, the
agency shall expunge from complainant's personnel files any documents
relating to complainant's discriminatory performance appraisal and
reassignment.
4. The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages. The agency shall
afford complainant sixty (60) days to submit evidence in support of
her claim for compensatory damages.<4> Within thirty (30) days of
its receipt of complainant's evidence, the agency shall issue a final
decision determining complainant's entitlement to compensatory damages,
together with appropriate appeal rights. A copy of the final decision
must be submitted to the Compliance Officer, as referenced below.
5. Within sixty (60) days of the date this decision becomes final, the
agency shall post at an appropriate place, a copy of the attached notice.
6. Within a reasonable period of time, the agency shall provide sixteen
(16) hours of training for the Chief and other responsible officials.
The training shall address responsibilities with respect to eliminating
discrimination in the workplace and all other supervisory and managerial
responsibilities under equal employment opportunity laws. At least a
third of this training shall address reprisal discrimination.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Oxnard POD, Central California
District facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
April 24, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
DATE
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed.Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
2 See agency's Report of Investigation, p. 491- 2.
3 See agency's Report of Investigation, p. 543.
4 The Commission has found that where a complainant has made a claim
for compensatory damages, the agency should request that the complainant
provide objective evidence of the claimed damages. See e.g. Carle
v. Department of the Navy, EEOC Appeal No. 10922369 (January 5, 1993);
Benton v. Department of Defense, EEOC Appeal No. 10932422 (December
10, 1993).