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).