0120092306
06-29-2010
Thelma Woods, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Thelma Woods,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120092306
Hearing No. 410-2008-00342X
Agency No. 07-1095-F
DECISION
On April 28, 2009, Complainant filed an appeal following her receipt
of a decision issued by an EEOC Administrative Judge (AJ) 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 order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Tax Examiner, GS-503-7, at the agency's Chamblee, Georgia facility.
Complainant's Declaration.
Complainant filed an EEO complaint dated November 6, 2007, alleging that
she was discriminated against in reprisal for prior protected EEO activity
under Title VII and subjected to a hostile work environment when:
1. On September 24, 2007, management did not respond to Complainant's
request to discuss her career development training.
2. On September 26, 2007, the Director sent Complainant an electronic
mail message cautioning her to refrain from writing personal derogatory
remarks and accusations directed at her manager.
3. On September 26, 2007, Complainant's manager issued her an admonishment
letter for not following the chain of command.
4. In September 2007, the Director refused to meet with Complainant and
discuss retaliatory matters with her.
5. On October 15, 2007, Complainant's manager issued Complainant an
alternative discipline notice.
6. On October 23, 2007, the operations manager held an expectations
meeting that included discussions on chain of command.
7. On October 25, 2007, the lead became angry during a staff meeting
and stated, "common sense would tell you to respond," in response to
Complainant's question of why he charged her with an error.
8. On November 1, 2007, the lead requested in a nasty tone Complainant's
management sheet and blocked her exit, refused to move, and continued
to discuss what Complainant needed to provide him daily.
9. On February 26, 2008, Complainant was issued a decision suspending
her from duty and pay for a period of three calendar days commencing on
March 17, 2008.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an AJ. Complainant timely requested a hearing and the
AJ held a hearing on November 21, 2008, November 24, 2008, and December
5, 2008. The AJ issued a bench decision on December 5, 2008, finding
Complainant failed to prove that she was subjected to discrimination
as alleged. When the Agency failed to issue a final order within forty
days of receipt of the AJ's decision, the AJ's decision became the
Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ was biased and did not want
to hear from her witnesses. Complainant also claims that the AJ had
"sidebar conversations" with the Agency's paralegal. Additionally,
Complainant cites errors in the hearing transcript.
In response to Complainant's appeal, the Agency states the AJ gave
Complainant more than ample opportunity to prove her assertions.
The Agency also notes Complainant's attorney did not assert any bias or
other problems with the AJ in her closing statement. The Agency states
that all of the witnesses identified by Complainant on her witness list
were allowed to testify. The Agency refutes Complainant's contention
that the AJ had "sidebar conversations" with the Agency's paralegal.
Instead, the Agency states that there were conversations between the AJ
and the AJ's own assistant. With regard to the typographical errors
in the hearing transcript, the Agency states that any errors were
done by the court reporter and none of these errors in the transcript
affected the outcome of the case. Moreover, the Agency argues that the AJ
correctly determined that the Agency satisfied its burden of articulating
non-retaliatory reason for its actions.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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 Construction
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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC
Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy,
EEOC Request No. 05950351 (December 14, 1995).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Moreover,
we determine there is no evidence that the AJ was biased, engaged in
improper ex parte communications with the Agency, or improperly excluded
any of Complainant's witnesses from testifying.
The record reveals that Complainant wanted to obtain a management position
with the Agency. To that end, on September 18, 2007, Complainant sent
an electronic mail message to her supervisor (S1) stating that she felt
that she was being retaliated against, although she did not say what the
retaliation was based on, when she is constantly denied the opportunity to
act as a lead. Complainant's Exhibit 8. S1 informed Complainant that at
the time employees were not being given lead training and were not being
allowed to act as a lead since it was the end of the year and S1 wanted
the work load completed. Id.; Hearing Transcript at 55-56. S1 informed
Complainant she could work the server during this time, which was one of
the duties a lead performs. Id. Complainant asked to have her electronic
mail message forwarded up the chain of command and this action was taken.
Complainant's Exhibit 8. Six days later, Complainant went above S1's head
and complained to higher level management. Complainant's Exhibit 6.
In issue 1, Complainant contends that on September 24, 2007, management
refused to respond to her request for career development training.
The record shows that Complainant's third level supervisor (S3) met with
Complainant on numerous occasions regarding career development between
2003 through 2007 and discussed career development opportunities.
Hearing Transcript at 30 - 33. The record reveals that S3 met with
Complainant most recently on February 26, 2007, regarding Complainant's
requests for formal training to become a lead and her wanting to become
a technical manager. Agency Exhibit 4, Hearing Transcript at 51.
Complainant also met with her first level supervisor several times
regarding career planning. Report of Investigation (ROI) at 157-162.
The record reveals that Complainant was told what she needed to do
to become a manager. Moreover, the Agency stated that with regard to
her September 18, 2007 electronic mail message, due to work schedules
and meetings, management had not yet had an opportunity to respond to
Complainant's message prior to her September 24, 2007 message to upper
management.
With regard to issue 2, the record reveals the Director sent Complainant
an electronic mail message cautioning her to refrain from writing personal
derogatory remarks. Agency Exhibit 2. The Agency stated this was done
because in her September 18, 2007 electronic mail message Complainant
made accusations directed at her manager and lead which the Director
determined were unfounded.
In issue 3 Complainant challenges the admonishment letter she was issued
on September 26, 2007. The record shows the Agency has a policy that
was verbalized and memorialized in writing informing employees that when
an employee has a concern in the workplace they are to raise the issue
through the chain of command and go up through their supervisory ranks.
EEO Counselor's Report Enclosure #4. The record shows Complainant was
aware of this policy prior to the incidents alleged in this complaint.
Agency Exhibit 3. Six days after she sent her September 18, 2007
electronic mail message to her supervisor, requesting her concerns be
raised through the chain of command, Complainant sent an electronic
mail message to the Commissioner of the Wage and Investment Division
with a copy to the Deputy Commissioner requesting their intervention on
the matter. Complainant's Exhibit 6. The Agency stated Complainant did
not wait a reasonable amount of time for a response to her September 18,
2007 electronic mail message and issued the letter of admonishment due
to Complainant's failure to follow the chain of command. EEO Counselor's
Report Enclosure #1.
With regard to issue 4, Complainant alleged that the Director refused to
meet with her to discuss and resolve the retaliatory actions taken against
her. The Director stated that he had previously met with Complainant
regarding her concerns and felt that a future meeting would not prove
fruitful. Director's Declaration; Hearing Transcript at 28-29.
With regard to issue 5, the record shows that on October 15, 2007,
Complainant's manager issued her an alternative discipline notice
informing Complainant that the Agency was considering issuing her a
three-day suspension for failing to follow the chain of command on
September 26, 2007. EEO Counselor's Report Enclosure #3. The Agency
noted that Complainant received a September 26, 2007 Admonishment Letter
for failure to follow the chain of command and then within hours of her
receipt of this letter, she again bypassed the chain of command. Id.
With regard to issue 6, the record reveals that S3 held an expectations
meeting on October 23, 2007, that included discussions on following the
chain of command. S3 testified that he held four expectations meetings
in October 2007 just before he left as the operations manager. Hearing
Transcript at 60-61. The record contains a document entitled Atlanta Exam
Employee Guidelines and Expectations with an issue date of October 23,
2007, which stated that employees must follow the chain of command to
report concerns. ROI at 209-215. The document noted that when issues
are reported outside the chain of command they are referred back to the
appropriate manager which results in unnecessary delay. Id. at 214.
The document also noted that failure to follow the chain of command
may result in disciplinary action. Id. S3 testified that this handout
was given to all employees in attendance at the expectations meetings.
Hearing Transcript at 60-61. S3 testified that he had two incidents
in 2007 where employees violated the chain of command. Id. at 61-62.
Complainant's name was never referenced at the expectations meeting.
Id. at. 70. Upon review, we find substantial evidence supports the
AJ's finding that the Agency had the expectations meeting to clarify
the Agency's policy with regard to following the chain of command.
With regard to issue 7, Complainant alleged that the lead (Person X)
became angry during a staff meeting on October 25, 2007, and said
"common sense will tell you to respond," in response to her question
of why he charged her with an error. Person X stated that he was not
responding to a direct question from Complainant as to why he charged
her with an error. Person X's Declaration. Person X admitted he
was frustrated during the discussion with Complainant since he felt
Complainant was trying to misrepresent his words and make it appear he
wanted examiners to rush through cases and that he did not care about the
quality of cases. Hearing Transcript at 217 - 218. Person X explained
that there is an auditing principle called the 80/20 principle which
called for assessment of 80% of the tax in twenty percent less time than
it would take to audit 100% of the case. Id. at 218. Person X stated
the gist of this is that management wanted tax examiners to use common
sense when working tax returns and he states he was referring to that
principle when he made the comment at issue. Id. at 218-219.
With regard to issue 8, Complainant alleged that on November 1, 2007,
Person X requested her management sheet in a nasty tone and blocked her
exit from her cubicle and continued to discus what she needed to provide
him daily. The record reveals that Complainant was required to turn in
her management sheet daily to Person X. Hearing Transcript at 219-220.
Person X stated that when he arrived at 6:00 a.m. on November 1, 2007,
he did not have Complainant's management sheet and stated that he knew
she had to leave early the previous day due to an emergency. Id. at
220. Person X stated that he waited an hour after Complainant arrived
before he asked her about the missing sheet. Id. He then stated that
Complainant was dismissive when she said she would give the sheet to him.
Id. Person X explained that he repeated himself and Complainant was
again dismissive. Id. at 220 - 221. Person X stated that Complainant
then got up from her desk and asked him to move. He stated that he
stepped back and Complainant slightly brushed up against his arm.
Id. at. 221.
With regard to issue 9, Complainant challenges the Agency's February 26,
2008 decision suspending her for three days beginning March 17, 2008.
The record reveals that Complainant was admonished on September 26,
2007, as described above, for going outside the chain of command.
EEO Counselor's Report Enclosure #1. The Agency noted that later in
the afternoon on the same day she received the letter of admonishment
for failing to follow the chain of command, Complainant made several
attempts to via telephone to contact the Director regarding the letter
of admonishment she had received. ROI at 73. Based on Complainant's
repeated actions in not following the chain of command, the Agency issued
Complainant a three-day suspension.
We note that Complainant failed to present evidence that any of the
agency's actions were a pretext for reprisal discrimination. Moreover,
we find that Complainant failed to show that she was subjected to a
hostile work environment in reprisal for prior protected EEO activity.
CONCLUSION
Accordingly, the Agency's final order finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 29, 2010
__________________
Date
2
0120092306
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120092306