Mary W. McIntosh, Complainant,v.Tommy G. Thompson, Secretary, Department of Health and Human Services, (National Institutes of Health) Agency.

Equal Employment Opportunity CommissionJul 30, 2001
01985967 (E.E.O.C. Jul. 30, 2001)

01985967

07-30-2001

Mary W. McIntosh, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, (National Institutes of Health) Agency.


Mary W. McIntosh v. Department of Health and Human Services

01985967

July 30, 2001

.

Mary W. McIntosh,

Complainant,

v.

Tommy G. Thompson,

Secretary,

Department of Health and Human Services,

(National Institutes of Health)

Agency.

Appeal No. 01985967

Agency No. NIH-039-56

Hearing No. 120-97-4214X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) 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 alleges she

was discriminated against on the bases of Race (Black), color (black),

and reprisal (prior Title VII activity) when:

(1) on March 13, 1995, complainant was given a performance evaluation

of �Fully Successful;

on March 13, 1995, the following statement was inserted into her

performance evaluation, �Timecards have been altered under the

responsibility of Ms McIntosh. Example Fauntroy, Perry.�;

in January 1995, managers were advised not to select complainant to

participate in various committees as she was not a good candidate;

on November 23, 1994, complainant's contract authority was undermined

by interfering with her efforts to hire an employee from a Temporary

Agency; and

complainant's appointment as the Acting Program Administrative Officer,

beginning August 1, 1995, was hindered by reducing the length of time

she spent in the acting position.

For the following reasons, the Commission AFFIRMS the agency's final

order.

BACKGROUND

The record reveals that complainant, an Administrative Officer at the

agency's National Institutes of Health facility in Bethesda, Maryland,

filed a formal EEO complaint with the agency on April 27, 1995,

alleging that the agency had discriminated against her as referenced

above. At the conclusion of the investigation, complainant received

a copy of the investigative report and requested a hearing before an

EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a

decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of race, color, or reprisal discrimination. Specifically, the

AJ found that complainant timely sought counseling as to (1) and (2)

supra, and that complainant failed to demonstrate that similarly situated

employees not in her protected classes were treated differently under

similar circumstances when they received their performance evaluations.

The AJ further found that, even assuming complainant had established a

prima facie case of discrimination, the agency articulated legitimate

nondiscriminatory reasons for its actions and complainant failed to show

that such reasons were a pretext for discrimination.

Regarding (3), (4), and (5), the AJ found that complainant did not

timely seek counseling as to these events, but that, even assuming

complainant could establish that all of the challenged events formed

a single continuing pattern of harassment, the agency articulated

legitimate nondiscriminatory reasons for its actions and complainant

failed to show that such reasons were a pretext for discrimination.

The agency's final order implemented the AJ's decision. From this

decision, complainant appeals.

On appeal, complainant restates many arguments previously made prior

to and at the hearing. In addition, complainant contends that the AJ

unfairly included another matter (whether the agency unfairly placed

comments in complainant's performance evaluation accusing her of altering

timecards and illegally reporting hours worked) in his decision after

telling both parties in a pre-hearing motion that the matter would

not be included. Because she was told the matter was not going to be

included, complainant argues, she was prevented from presenting arguments

on the matter during the hearing. In response, the agency restates the

position it took in its final agency order, and requests that we affirm

its final order.

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).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. However, we take this

opportunity to clarify the AJ's decision. We note that in the absence of

direct evidence of discrimination, the allocation of burdens and order

of presentation of proof in a Title VII case alleging discrimination is

a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-803 (1973). First, complainant must establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason proffered by the agency was a

pretext for discrimination. Id. at 256.

In order to establish a prima facie case, a complainant may show that

she is a member of a protected class, that she was subjected to adverse

treatment, and that she was treated differently than otherwise similarly

situated employees outside of the protected class. See Potter v. Goodwill

Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). We find that,

regarding (1) and (2), complainant has established prima facie cases of

discrimination based on race and color. The record shows that complainant

was given an evaluation of �Fully Successful� while another Administrative

Officer (CW: Hispanic, prior EEO activity) received a higher evaluation.

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination. Shapiro v. Social Security Administration,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411

U.S. at 802). Specifically, in a reprisal claim, and in accordance with

the burdens set forth in McDonnell Douglas, and 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 of reprisal by showing that: (1) she

engaged in a protected activity; (2) the agency was aware of her protected

activity; (3) subsequently, she was subjected to adverse treatment<1>

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).

We find that, regarding (1) and (2), complainant has established

a prima facie case of reprisal discrimination because she filed an

EEO complaint against her supervisor (RMO: American Indian, White, no

prior EEO activity) was subsequently subjected to adverse treatment, and

there was a temporal link between the filing and the adverse treatment.

We further find, however, that the agency has articulated legitimate

nondiscriminatory reasons for its actions. The agency contends that

complainant received an evaluation no higher than �Fully Successful�

because she had difficulty functioning as a new supervisor and needed to

improve her communication with senior management officials and with RMO,

as shown by her failure to consult with RMO when making changes regarding

telephone coverage and file maintenance. In addition, complainant failed

to complete two �Memorandum of Understanding� which were intended to

settle personnel disputes with two employees, had difficulty dealing

with subordinates, and required improvement in procurement controls.

Finally, complainant's lax maintenance of the timekeeping records under

her control and her failure to conduct �spot audits� led to overtime and

leave fraud by two employees, justifying the evaluation she received

and the insertion of the negative comments regarding the fraud in her

performance evaluation.

Because the agency has articulated legitimate, nondiscriminatory

reasons for its action, the burden shifts to the complainant to prove,

by a preponderance of the evidence, that such legitimate reasons

are a pretext for discrimination. See Burdine, 450 U.S. at 256.

Following a careful review of the evidence, the Commission finds that

the complainant has failed to meet this burden. Complainant argues

that CW also failed to complete memoranda of understanding on time but

received a higher evaluation than complainant. The AJ found, however,

that complainant's strained relationships with numerous employees

justified the lower evaluation she received in comparison with CW.

Complainant further argues that she was never told to conduct �spot

audits� of the timekeeping records under her control, that no other

Administrative Officers, including CW, conducted �spot audits�, that

she was not responsible for the timekeeping fraud, and that of all the

people in the chain of control of the timekeeping records, she was the

only one singled out for blame.

The AJ found that the weight of evidence showed that complainant knew

she was required and expected to conduct random timekeeping audits,

based on credible testimony from RMO and CW, and on numerous memoranda

circulated between 1992 and 1994. Complainant denied receiving these

memoranda because they were �cc:'d� to ORS Administrative Officers and

she was a DES Administrative Officer. The AJ did not find this testimony

to be credible, however, since DES is a branch of ORS and there was only

one Administrative Officer directly assigned to ORS. In addition, the

AJ found that such audits were a reasonable method for Administrative

Officers to exercise the type of effective internal controls spelled out

in the position description and performance evaluations. The AJ further

found that RMO did not discriminate illegally in finding complainant to be

more blameworthy for the fraud than CW, and thus did not cite CW, because

CW told RMO that she did conduct �spot audits,� CW passed along RMO's

directive to perform �spot audits� to her subordinates, and complainant

had more experience in the area where the fraud occurred than did CW.

For these reasons we find that complainant has not met her burden of

showing, by a preponderance of the evidence, that the agency's reasons

for its actions in evaluating her as �Fully Successful� and in inserting

negative comments into her performance evaluation, are a pretext for

discrimination.

Regarding (3), (4), and (5), we agree with the AJ that, when viewed

individually, these challenged incidents are subject to dismissal for

untimeliness, 29 C.F.R. � 1614.107(a)(2), because complainant did not seek

EEO Counselor contact within the 45 day time-limit mandated by 29 C.F.R. �

1614.105(a)(1). However, even assuming arguendo that such incidents,

together with the timely challenged incidents, form part of a continuing

pattern of behavior against complainant to justify consideration under the

theory of continuing violation, such behavior is insufficiently severe

to constitute harassment. We note that in Harris v. Forklift Systems,

Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is

actionable if it is sufficiently severe or pervasive that it results

in an alteration of the conditions of the complainant's employment. See

EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris

v. Forklift Systems, Inc. at 3. To establish a prima facie case of

hostile environment harassment, a complainant must show that: (1)

she belongs to a 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. 29 C.F.R. � 1604.11.

Furthermore, in assessing whether the complainant has set forth an

actionable claim of harassment, the conduct at issue must be viewed in

the context of the totality of the circumstances, considering, inter

alia, the nature and frequency of offensive encounters and the span of

time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);

EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050,

No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request

No. 05970077 (March 13, 1997). However, as noted by the Supreme Court

in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple

teasing, offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the �terms and

conditions' of employment." The Court noted that such conduct �must be

both objectively and subjectively offensive, [such] that a reasonable

person would find [the work environment to be]

hostile or abusive, and . . . that the victim in fact did perceive to

be so.� Id. at 2283. See also Burlington Industries, Inc. v. Ellerth,

524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S.

(2001) (No. 00-866 April 23, 2001).

Finally we note complainant's argument that she was unfairly prevented

from presenting arguments on a sixth matter which the AJ included in

his decision after telling both parties in a pre-hearing motion that it

would not be included. The AJ's decision lists as an issue in question,

whether the agency unfairly placed comments �accusing [complainant]

of altering timecards and illegally reporting hours worked on ... her

1994 performance evaluation.� We note however, that while this was

separately listed by the AJ in his decision, the AJ's decision in fact

discusses it only in the context of the general discussion concerning

complainant's 1994 performance evaluation as listed in (1) and (2).

Furthermore, we find that this allegedly �sixth issue� is in fact part

of complainant's challenge as set forth in (1) and (2). Accordingly,

we find the AJ's inclusion in the introductory section of the decision

of a separate paragraph to this effect to be harmless error.

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated by

discriminatory animus toward complainant's Race or color. We discern no

basis to disturb the AJ's decision. Therefore, after a careful review of

the record, including complainant's contentions on appeal, the agency's

response, and arguments and evidence not specifically addressed in this

decision, we AFFIRM the agency's final order.

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 (S0900)

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 (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

July 30, 2001

__________________

Date

1The Commission interprets the statutory retaliation clauses "to prohibit

any adverse treatment that is based on a retaliatory motive and is

reasonably likely to deter the charging party or others from engaging

in protected activity." EEOC Compliance Manual, Section 8 (Retaliation)

at 8-13 - 8-14 (May 20, 1998).