0120080651
09-28-2009
Virginia Cockerham, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Virginia Cockerham,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120080651
Hearing No. 270-2005-00089X
Agency No. FW 04-19
DECISION
On November 21, 2007, complainant filed an appeal from the agency's
October 12, 2007 final order 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge's (AJ) decision, finding that
complainant was not subjected to discrimination based on her race, color,
age and in reprisal for her prior protected EEO activity, is supported
by substantial evidence in the record.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Contractor and Industrial Relations Specialist, GS-12, in the
agency's Office of Labor Relations. Although her direct supervisor was
located in an agency facility in Fort Worth, Texas, complainant was an
"outstationed" employee working in New Orleans, Louisiana.
The record reflects that on October 2, 2003, the Director, Office of
Labor Relations issued a memorandum advising that the journeyman level for
Contractor Industrial Relations Specialist (Labor Relations Specialist)
position had been upgraded from GS-12 to the GS-13 level. The Director
noted that some Labor Relations Specialists at the GS-12 level would
have the opportunity for promotion to the GS-13 level during the fiscal
year once certain prerequisites were met. The Director instructed the
Regional Labor Relations Officers to submit promotion recommendations on
a case-by-case basis. Sometime that fall, the Regional Labor Relations
Officer (RLRO1), complainant's direct supervisor, recommended complainant
and four or five other GS-12 employees for promotion to the GS-13 level.
On October 16, 2003, RLRO1 provided complainant with a Progress
Review Record for the rating period beginning on February 1, 2003.
RLRO1 rated complainant "highly successful" on two of her critical
elements and "fully successful" on her remaining three critical elements.
Complainant disagreed with RLRO1's assessment of her performance, and
she refused to sign her Progress Review Record.
In January 2004, RLRO1 retired. Upon his retirement, another
Regional Labor Relations Officer (RLRO2) became complainant's new
direct supervisor. The employee rating period ended on January 31,
2004, and, as a result, RLRO2 requested a ninety (90) day extension
to further evaluate her employees' performance. In May 2004, RLRO2
issued complainant her Performance Appraisal for the rating period
from February 1, 2003 to April 4, 2004. RLRO2 rated complainant as
"outstanding," the highest possible rating, on two critical elements,
"highly successful" on her remaining three critical elements, and "highly
successful" for her summary rating. Complainant felt that her overall
work performance merited an "outstanding," and she refused to sign her
Performance Appraisal.
In late May 2004, RLRO2 learned that complainant was out on travel, but
for administrative reasons her travel had not yet been approved. RLRO2
attempted to contact complainant to discuss her travel authorization,
and she left voicemails for her at work and at home. On July 12, 2004,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of race (African American), color (Black), age
(48 years old at the time of the incidents), and in reprisal for prior
protected EEO activity arising under Title VII when:
(1) On May 17, 2004, RLRO2 issued her a "Highly Successful" Performance
Appraisal rating for the period February 1, 2003 through January 31,
2004;
(2) On May 27, 2004, RLRO2 created an embarrassing and unprofessional
situation by leaving a telephone message with a Housing Authority
Executive, to inform her not to touch a file until she spoke with her;
and
(3) RLRO2 delayed her promotion to the GS-13 level until June 2004,
while two (2) White employees received their promotions in March 2004.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing, and the AJ held a hearing on September 26, 2006.
On September 24, 2007, the AJ issued a decision finding no discrimination.
The AJ found that complainant failed to establish a prima facie case
of discrimination based on reprisal for prior protected EEO activity.
The AJ further found that complainant failed to establish that the
agency's legitimate, nondiscriminatory reasons for its actions were a
pretext for unlawful discrimination. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in finding no
discrimination. She argues that RLRO2 was not her supervisor during
the rating period and did not have the authority to rate her during
the relevant time period. She further argues that management officials
improperly delayed her promotion from the GS-12 to the GS-13 level due
to her leave usage and that she had "cleared up" any issues regarding
her leave issues in January 2004.
In response, the agency urges the Commission to affirm the final decision.
The agency argues that the AJ properly found that "complainant failed
to establish a prima facie case of reprisal discrimination or that the
[a]gency's articulated reason for its actions was pretext to mask illegal
discrimination on the bases of her race, color, age, or reprisal."
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, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. 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).
Assuming arguendo that complainant established a prima facie case of
discrimination based on race, color, age, or in reprisal for her prior
protected EEO activity, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim (1),
RLRO2 testified at the hearing that she issued complainant's Performance
Appraisal for the rating period because RLRO1 had retired in January 2004.
RLRO1 stated that complainant's rating period was extended ninety (90)
days to allow her more time to rate her. RLRO2 stated that she evaluated
complainant's work performance by considering her work products, the
"LR-2000" report, and the October 2003 Progress Review Record RLRO1 had
issued to complainant. RLRO2 stated that she did not feel that the level
of work complainant provided deserved an outstanding summary rating,
but some elements of complainant's work performance were outstanding,
as reflected in her Performance Appraisal. RLRO1 did not testify at the
hearing, but he submitted an affidavit into the record stating that he
felt complainant's work performance was "satisfactory" during the rating
period.
With respect to claim (2), RLRO2 stated that she left a message with
complainant at work because she was out on travel without proper
authorization. RLRO2 stated that she left a voicemail for complainant
at home because she realized that complainant would be on travel in the
next day or two, and she felt it was necessary to inform her that her
travel was also not authorized for her next work related trip. In her
affidavit, RLRO2 denied ordering complainant not to not to touch a file
until she spoke with her.
Regarding claim (3), the Director testified that he forwarded
complainant's promotion package to the Office of Human Relations.
He stated that once the package was forwarded to the Office of Human
Resources, he had no control over the actual date that the promotion
would take place. He stated that another management official had
to "sign off" on complainant's promotion after the Office of Human
Resources had processed her paperwork, and the time it took for all
of the parties involved in processing her promotion caused the delay.
He noted that there was no "time sequence" delineating when promotions
would be processed and that some employees outside complainant's protected
classes received their promotions after her.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we find that the AJ's determination that
complainant failed to establish pretext is supported by substantial
evidence in the record. We find no evidence that the agency's actions
were motivated by discriminatory animus towards her protected classes.
The evidence reflects that RLRO2 was authorized to issue complainant her
Performance Appraisal for the relevant rating period, and there is no
evidence that any of complainant's alleged leave issues caused a delay in
the processing of her promotion to the GS-13 level. Although complainant
disputed the testimony provided by agency officials at the hearing,
the AJ found that the management officials provided credible testimony.
We find no evidence in the record that undermines the testimony provided
by the management officials at the hearing.
Finally, to the extent that complainant is alleging that she was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A prima facie case of hostile work environment is precluded
based on our finding that complainant failed to establish that any of
the actions taken by the agency were motivated by discriminatory animus
or a retaliatory motive. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
factual findings are supported by substantial evidence in the record.
We discern no basis to disturb the AJ's decision. Accordingly, after
a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in the
decision, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
______09/28/09____________
Date
2
0120080651
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120080651