Kellye C.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.Download PDFEqual Employment Opportunity CommissionOct 31, 20180120170204 (E.E.O.C. Oct. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kellye C.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury, Agency. Appeal No. 0120170204 Hearing No. 570-2014-00407X Agency No. DO-13-0158-F DECISION On October 24, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 30, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether substantial evidence in the record supports the finding of the Equal Employment Opportunity Commission Administrative Judge (AJ) that Complainant failed to establish by the preponderance of the evidence that she was subjected to discrimination based on race and/or reprisal. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120170204 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Safety and Occupational Health Specialist, GS-0018-11, in the Agency’s Office of Environment, Health, and Safety (OEHS) in Washington, D.C. Complainant is biracial (African-American and Caucasian). Since August 2011, Complainant’s first-line supervisor was the Director of OEHS (S1, Caucasian). In November 2011, S1 rated Complainant as fully successful for fiscal year (FY) 2011, although he commented that she needed to improve her inspections, professionalism, and timeliness. Complainant averred that S1 issued the GS-14 Safety Program Manager (C1, Caucasian) a Performance Improvement Plan (PIP) based on his 2011 performance. In January 2012, Complainant contacted an EEO Counselor to allege that S1 subjected her to a hostile work environment based on race and sex. Complainant and the Agency settled this matter after mediation. According to Complainant, S1 disliked her because of her race. Complainant stated that S1 was physically threatening towards her and was confrontational towards her in meetings. Complainant alleged that S1 treated other African-American subordinates similarly. On April 13, 2012, S1 issued Complainant a revised position description and FY 2012 performance plan. Complainant asked for additional training because the new position description had additional duties. S1 approved Complainant’s requests for training. According to S1, he had several one-on-one meetings with Complainant between April 13, 2012, and October 1, 2012, to outline his expectations and attempt to improve Complainant’s subpar performance. On December 5, 2012, S1 issued Complainant a Notice of Unacceptable Performance and a PIP. The PIP cited Complainant’s unacceptable performance in performing Job Safety Analyses and inventorying safety equipment. Complainant’s second-line supervisor (S2, Caucasian) stated that she concurred with the PIP because Complainant failed to write certain policies and Job Hazard Analyses. S2 averred that Complainant also had a reputation for being loud, uncooperative, and argumentative in the workplace. Complainant filed a grievance regarding the December 5, 2012, PIP on technical grounds because another employee’s job duties were listed on the PIP. On December 20, 2012, Complainant received a modified PIP that contained her job duties. On January 14, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Biracial (African-American and Caucasian)) and reprisal for prior protected EEO activity when on December 5, 2012, she was issued a PIP, which was revised on December 20, 2012. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. The AJ held a hearing on July 19, 2016, and issued a decision on September 14, 2016. 0120170204 3 The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Complainant makes no contentions on appeal. In response to Complainant’s appeal, the Agency contends that Complainant failed to establish that she was subjected to discrimination based on race and/or reprisal and requests that its final decision fully implementing the AJ’s decision be affirmed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. 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). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency’s legitimate, nondiscriminatory reasons for issuing Complainant the PIP were that she failed to write certain policies, inventory equipment, and conduct certain Job Hazard Analyses. We find that substantial evidence in the record supports the AJ’s finding that Complainant failed to establish by the preponderance of the evidence in the record that the Agency’s proffered legitimate, nondiscriminatory reasons were a pretext for discrimination or retaliation. Accordingly, Complainant has not established that she was subjected to disparate treatment when she was placed on a PIP in December 2012. 0120170204 4 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 decision because substantial evidence in the record supports the AJ’s conclusion that Complainant failed to establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 0120170204 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 31, 2018 Date Copy with citationCopy as parenthetical citation