01981880
09-20-2001
Kathleen R. Jordan, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Kathleen R. Jordan v. Department of Housing and Urban Development
01981880
September 20, 2001
.
Kathleen R. Jordan,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01981880
Agency Nos. SF9401 & SF9407
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. Complainant alleged that she was discriminated
against on the basis of race/color (African-American/black) and subjected
to retaliation for prior EEO activity (pursuant to Title VII) when, on
September 10, 1993, her supervisor (S1) asked her to provide a detailed
explanation or justification for entering the Time and Attendance cabinet
(Issue 1). Complainant also alleged that she was subjected to retaliation
for prior EEO activity when the Deputy Chief, Property Disposition Branch
(DCP) forced S1 to change her 1993 �Outstanding� performance appraisal
rating to a �Highly Successful� rating (Issue 2).
The record reveals that during the relevant time, complainant was
employed as a Realty Clerk at the agency's Phoenix, Arizona facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed formal complaints on October 15,
1993 and December 24, 1993. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of race discrimination and retaliation in regard to Issue 1.
Specifically, the agency found that White Clerks were permitted to unlock
and look through the folders in the Time and Attendance cabinet without
providing a detailed justification. Similarly, the agency found that
complainant had engaged in prior EEO activity of which the relevant
management officials were aware and that there was a sufficient nexus
between this activity and the incident in question to establish a prima
facie case of retaliation.
The agency then concluded, however, that the agency articulated
legitimate, non-discriminatory explanations for its actions. S1 noted
that when complainant asked for the key to the Time and Attendance
cabinet, he gave it to her and she returned it quickly, but that
DCP later chastised him for letting complainant have access to the
records contained in the cabinet �even briefly.� DCP stated that
while complainant was allowed access to the Time and Attendance files,
only supervisors were allowed to have keys. DCP noted that he believed
that S1 had �surrendered� his key to complainant and that this was not
permitted. DCP denied that he asked S1 to have complainant provide a
detailed explanation of what she had accessed in the cabinet. A Union
Representative (UR) testified that another union member told her that
complainant went into the cabinet and because the cabinet contained
personnel records that only supervisors were allowed to view, UR told
DCP that complainant had keys and had been looking in the cabinet.
The agency concluded that complainant did not sustain her burden of
proving, by a preponderance of the evidence, that she was discriminated
against on the bases of race/color or retaliation.
In regard to Issue 2, the agency again concluded that complainant
established a prima facie case of retaliation. The agency then found
that a legitimate non-discriminatory explanation was provided by the
relevant management officials. Specifically, S1 stated that he rated
complainant �Outstanding� but that DCP changed the rating. DCP testified
that he asked S1 to provide examples of complainant's work to support
the �Outstanding� rating, but that S1 was unable to provide examples.
DCP noted that S1 decided to lower complainant's rating in regard to
the Element One��Ability to Prepare General Correspondence��because that
element required taking initiative and S1 was unable to give examples of
complainant doing so. DCP noted that to receive a rating of �Outstanding�
in Element 1, an individual would need to observe something that needed
to be done and, on their own initiative, complete that task. The agency
concluded that complainant did not sustain her burden of proving, by
a preponderance of the evidence, that she was discriminated against on
the basis of reprisal when she was given a �Highly Successful� rating.
On appeal, complainant contends that S1's testimony was truthful and that
the other managers testified falsely concerning Issues 1 and 2. She notes
that her complaint is based solely on retaliation and that the addition
of race as a basis was intended to cover-up the real facts of the case.
Complainant also contends that S1 stated that her performance during
the time in question was �Outstanding� and cites to a note written from
DCP to S1 wherein DCP noted that complainant had an opportunity �every
day, all year to create a memorandum� and stated that her failure to do
so blocked the �Outstanding� rating. Complainant also notes that S1
testified that he felt it was �ridiculous� to require an employee to
write a memorandum concerning the ideas of other employees. Finally,
complainant reiterates that because she received a performance appraisal
of �Highly Satisfactory� instead of �Outstanding,� she did not receive
an award for Fiscal Year 1993.
ANALYSIS AND FINDINGS
As an initial matter, we note that complainant asserts on appeal that
her complaint is based solely on retaliation and that she never intended
to claim that the agency's actions were motivated by her race/color.
Accordingly, this decision will only address complainant's claim of
retaliation for prior EEO activity.
Claims of retaliation are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U. S. 792
(1973). Specifically, and in accordance with the burdens set forth in
McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request
No. 05960473 (November 20, 1997), a complainant may establish a prima
facie case by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). Where the agency articulates legitimate,
nondiscriminatory reasons for its actions, the burden returns to the
complainant to demonstrate by a preponderance of the evidence that
the agency's reasons are a pretext for retaliation. See Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993). A complainant can demonstrate
pretext by persuading the fact finder by preponderant evidence that the
stated reasons were not the true reasons or that the agency acted on the
basis of a prohibited factor. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).
Here, we agree with the agency's determination that complainant
established a prima facie case of retaliation. Complainant engaged in
prior protected activity of which DCP and S1 were aware. In fact, DCP
was highly involved in at least one of complainant's prior EEO complaints.
Moreover, complainant was thereafter subjected to adverse treatment at the
direction of DCP when she was required to give a detailed justification
for looking in the Time and Attendance Cabinet and her Fiscal Year
1993 performance appraisal was changed from �Outstanding� to �Highly
Successful.� Given that complainant's prior protected activity began in
June 1992 and was on-going, and involved the same management official
as that involved in the subject complaint, we agree with the agency's
determination that a nexus exists between the protected activity and
the adverse treatment at issue.
We note that a complainant need not allege that she was subjected to
an ultimate employment action to establish retaliation. Rather, as
noted in our Compliance Manual, a violation will be found if an employer
retaliates against a worker for engaging in protected activity through
threats, harassment in or out of the workplace, or any other adverse
treatment that is reasonably likely to deter protected activity by that
individual or other employees. See EEOC Compliance Manual-- Section
8: Retaliation. No. 915.002, at 8-13 (May 20, 1998). In the case at
hand, complainant, at the urging of a management official with direct
involvement in one of complainant's prior EEO complaints (DCP), was
required to provide a detailed explanation and justification for actions
that she had previously performed on a frequent basis without incident.
DCP also required, or at least strongly suggested, that complainant's
performance appraisal be lowered. These actions qualify as adverse
treatment reasonably likely to deter protected activity.
The agency's articulated explanation for these actions is unpersuasive.
In regard to Issue 1, the explanation for requiring complainant to
explain in detail what she was accessing in the Time and Attendance
cabinet appears to be that someone saw her looking in the cabinet and,
for some reason, DCP felt that S1 must have relinquished his key to
her despite the fact that certain records in the cabinet were meant to
be viewed by supervisors only. In regard to Issue 2, DCP stated that
it was S1 who decided to lower complainant's rating when he could not
provide DCP with examples of complainant's outstanding work.
We find that these explanations are a pretext for retaliatory animus.
It is undisputed that complainant was required to access the documents in
the cabinet as part of her job and that she did so on a frequent basis,
as did other employees with jobs similar to hers. Moreover, although
DCP noted that he questioned S1 about complainant's possession of the
key to the Time and Attendance cabinet because the files contained
in it included information that should only be viewed by supervisors,
the record indicates that when DCP left the Property Distribution Unit,
he removed the allegedly confidential records from the cabinet and left
them on an empty desk in the hallway, so that he could take the cabinet
itself with him. Given these facts, the agency's claim that the incident
in question was caused by the fact that complainant was seen looking in
a cabinet that contained confidential records is not worthy of belief.
Turning to Issue 2, we first note that complainant's Performance Appraisal
Standards include �takes initiative and creates memorandum based on
ideas from the unit,� under the �Outstanding� category.<1> However,
complainant and S1 testified that there was nothing in the unit on which
to base a memorandum during the period in question. In his affidavit,
DCP did not dispute this contention and instead acknowledged that it
was very difficult to create memorandum based on nothing.
We further note that DCP's explanation for complainant's lowered rating
is unreliable. Contrary to DCP's testimony that S1 decided to lower
complainant's rating, S1 noted that he rated complainant's work as
outstanding because he felt it to be so, and that it was DCP who lowered
the rating. Specifically, S1 stated that after he gave complainant
an �Outstanding� rating, he received a note from DCP indicating that
complainant did not meet the criteria for �Outstanding� because she did
not �create a memorandum� as required by Element 1 of the performance
appraisal guidance. A document in the record confirms that DCP sent S1
a note indicating that complainant had numerous opportunities to create
a memorandum and that if she did not, she did not meet all the criteria
necessary to receive an �Outstanding� rating. S1 testified that he told
DCP that he felt it was �ridiculous� to require employees to take the
ideas of other employees and turn them into memos in order to receive
an �Outstanding� rating, but that DCP insisted that complainant could
not be rated as �Outstanding� if she did not create memorandum.
During the investigation of this complaint, however, DCP did not rely on
the �need to create a memorandum� to justify his belief that complainant
received the rating she deserved. Instead, DCP altered his explanation,
concentrating on the argument that S1 could not provide examples of
complainant taking initiative. We note, however, that the record is
clear that when DCP told S1 that the rating should be changed, he made
no mention of taking initiative and ignored S1's complaint that it was
impossible to create a memorandum based on nothing, instead insisting
that failing to create a memorandum prevented the �Outstanding� rating.
Only during the EEO investigation did DCP acknowledge that it would be
very difficult to create a memorandum based on nothing and change his
explanation to focus on the need to take initiative.
After a careful review of the record, we find that DCP's testimony is
unworthy of belief. His explanations for both incidents were contradicted
by the record. In the case of Issue 1, DCP's explanation was rebutted by
his own actions and by the testimony of numerous witnesses who indicated
that employees in complainant's position were allowed access to the
cabinet in question. DCP's explanation for lowering complainant's
appraisal is similarly rebutted by complainant's immediate supervisor
and by DCP's own testimony, in which he acknowledged that it would
be difficult to create a memorandum based on nothing and attempted to
justify his actions with a new explanation. Documents in the record
establish that this new explanation, focusing on initiative, was not
the explanation given to S1 when he was ordered to change complainant's
rating. Based on these facts, and the unchallenged determination that
complainant established a prima facie case of retaliation, we find that
complainant has established by a preponderance of the evidence that she
was subjected to retaliation.
Accordingly, after a thorough review of the record, including arguments
and evidence not specifically addressed in this decision, the agency's
final decision is hereby REVERSED and the matter REMANDED to the agency
to take remedial actions in accordance with this decision and the
ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall retroactively revise complainant's Fiscal Year
1993 performance appraisal to a rating of �Outstanding� and expunge the
�Highly Successful� appraisal from all personnel and other records.
Complainant shall also be awarded any awards or benefits which were
awarded by the agency for �Outstanding� ratings during this period,
from the effective date of the performance appraisal, with interest.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall expunge from complainant's personnel file and all other
records, any negative comments relating to complainant's September 10,
1993 entry into the Time and Attendance cabinet.
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall conduct training for supervisory officials in
the Property Disposition Branch of the Housing Management Division at
the Phoenix, Arizona facility. The agency shall also require DCP, who
has since left his position as Deputy Chief of the Property Disposition
Branch for another position within the agency, to undergo training.
This training shall address these employees' responsibilities with
respect to eliminating discrimination in the workplace and all other
supervisory responsibilities under equal employment opportunity law.
The issues of compensatory damages and attorney's fees and costs are
REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) days after the agency's receipt of the
attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below..
The agency shall post copies of the attached notice in accordance with
the statement entitled �Posting Order.�
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's calculation of the benefits due complainant, including evidence
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Phoenix, Arizona 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 20, 2001
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. has occurred at the Department of Health
and Human Services, Phoenix, Arizona facility (�facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have violated Title VII when it retaliated
against an employee for engaging in EEO activity. The agency was ordered
to: (1) revise complainant's Fiscal Year 1993 performance appraisal
rating to �Outstanding� and expunge the �Highly Successful� appraisal
from all agency records; (2) grant complainant, with interest, any awards
or other benefits she should have received due to the �Outstanding�
performance appraisal; (3) provide training in employment discrimination
law to the supervisors within the relevant division, as well as to the
former Deputy Chief of that division (who has since moved to another
division); (4) issue an appropriate award of compensatory damages,
if it is determined that complainant is entitled; (5) award reasonable
attorney's fees, if applicable; and (6) post this notice.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
1 The record establishes that no other Realty Clerks were subjected to
this standard. It appears from the records provided that each Realty
Clerk in the Property Distribution Unit had different performance
standards, none of which were created by DCP.