0120111132
04-10-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111132
Hearing No. 430200900062X
Agency No. ARBRAGG08JAN00184
DECISION
On December 14, 2010, Complainant filed an appeal from the Agency's December 16, 2010 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. The Commission deems the appeal timely and accepts it 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 finding that Complainant was not retaliated against as alleged is supported by substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Health Systems Technician (HST) in the Administrative Support Division, Department of Preventative Medicine (PM Department), Womack Army Medical Center (WAMC), Fort Bragg, North Carolina. On March 11, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity when:
1. On January 17, 2008, she was issued a rating of "1" on her National Security Personnel System (NSPS) Appraisal; and
2. On June 13, 2008, she was changed to a lower grade.
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 Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on December 16 and 17, 2009, and issued a decision on October 19, 2010.
The AJ found the following facts: A Supervisory Health Systems Specialist (S1) had competitively selected Complainant for the HST position. Complainant started working as HST in April 2007, although she was not officially placed in the position until July 8, 2007. Complainant had to complete a one year probationary period.1
Claim 1
Around September 6, 2007, S1 conducted an interim performance assessment with Complainant. S1 noted that Complainant showed the ability to grasp and carry out the job objectives. S1 stated that "Continued performance at the current level will result in moving to full grade of GS-0303-07 very soon. Training has been completed to successfully move up."
On September 11, 2007, Complainant's second line supervisor, Chief of the PM Department (Chief1) was removed from her position. She was replaced by Chief2.
Sometime in at the end of September or early October, S1 completed Complainant's performance evaluation. An employee's rater and senior rater submitted a recommend rating for the employee to the pay pool panel. The rater scores the employee's job objectives on a scale of 1 to 5, with 1 being the lowest and 5 being the highest. The pay pool consisted of selected management officials. The pay pool reviewed and reconciled the recommended rating. The employee receives a number of "shares" of the pay pool which determines the employee's performance payout. Employees who receive an overall score of "1" or "2" do not receive a payout. S1 and Chief1 completed Complainant's evaluation and gave Complainant an overall rating of "3."
On November 5, 2007, S1 was detailed to the Department of Research for 60 days. Chief2 became Complainant's first level supervisor. At the end of November 2007, Chief2 selected a Deputy Chief of the PM Department (S2). S2 became Complainant's first level supervisor and Chief2 was her second level supervisor. Around November 26, 2007, the EEO office contacted Chief2 about an informal complaint of discrimination made by Complainant concerning Chief2 rescission of a time off award.
The pay pool panel reviewed Complainant's recommended rating. According to the Pay Pool Manager (PPM), S1's positive written evaluation of Complainant did not match the numerical ratings given by S1. In addition, one of the pay pool panel members, Deputy Commander at Womack, who was also Complainant's third of fourth level supervisor, expressed concern that the rating by S1 was inflated or inaccurate. The pay pool panel attempted to contact S1 for clarification, but she was out on leave. The pay pool panel then contacted Chief2 because at that point, he was Complainant's second level supervisor. Chief2 wrote an evaluation of Complainant's performance and gave her an overall rating of "1." The pay pool panel determined that Chief2's evaluation supported a rating of "1" so the pay pool panel made it Complainant's final rating.
Around January 11, 2008, Chief2 met with Complainant and notified her about her performance rating. On January 23, 2008, Complainant contacted the EEO office about her negative performance evaluation. On January 24, 2008, Complainant made a reconsideration request to the pay pool panel. Complainant met with the panel and explained why she felt she deserved an overall rating of "3" rather than "1." On February 4, 2008, the pay pool panel agreed to change her final rating to a "2."
With regard to claim 1, the AJ found that Complainant failed to establish a prima facie case of discrimination based on race or sex. With regard to claim 1, the AJ found that Complainant established a prima facie case of reprisal. The AJ determined that Complainant made an informal EEO complaint of which Chief2 was aware, and that Chief2 submitted his negative evaluation of Complainant's performance to the pay pool with two months of learning about her EEO contact.
The AJ found that the Agency proffer reasons for its actions. Specifically, Chief2 testified that he changed Complainant's evaluation because he did not think S1's evaluation was accurate. However, the AJ noted that Chief2 also testified that he did not have access to S1's written evaluation of Complainant's performance. The AJ also noted that Chief2 had not discussed Complainant's performance with S1. The AJ found that Chief2's comments showed that he based them on complaints and allegations about Complainant from other employees and supervisors that he had not discussed with Complainant. The AJ found that given that Chief2 recommended the lowest possible rating for Complainant, "one would have expected more substantial evidence of poor performance." The AJ also noted that it was "troubling" that Chief2 chose to "ambush" Complainant with his evaluation. The AJ also noted that Chief2 made no attempt to notify Complainant about any deficiencies in her performance prior to including them in her evaluation. The AJ concluded that given the close proximity of Complainant's EEO activity, Complainant met her burden of showing that more likely than not, Chief2's reasons for providing a negative evaluation were a pretext and that she was discriminated against for engaging in protected EEO activity.
Claim 2
With regard to claim 2, the AJ found that, on March 11, 2008, Complainant filed an EEO complaint. Around April 15, 2008, S2 met with Complainant to conduct her interim performance assessment. During the meeting, S2 told Complainant that she was not meeting her performance standards. S2 also told Complainant that she was considering removing her supervisory responsibilities. S2 consulted with Human Resources about changing Complainant to a lower grade prior to the expiration of her probationary period. On June 23, 2008, Complainant was changed to a lower grade for failure to satisfactorily complete her supervisory probationary period. Complainant's position was changed to a Patient Appointment Assistant, at Robinson Health Clinic.
The AJ found that Complainant failed to establish a prima facie case of discrimination based on race or sex. However, the AJ found that Complainant established a prima facie case of reprisal. The AJ determined that Complainant engaged in protected EEO activity when she contacted the EEO office about the current complaint on January 23, 2008 and subsequently filed a formal complaint on March 11, 2008. Complainant was downgraded on June 23, 2008.
The AJ found that the Agency met its burden of providing a legitimate nondiscriminatory reason for its actions. Complainant received a lower grade for failing to satisfactorily meet her performance standards. The AJ found that S2 credibly testified that she did not believe that Complainant was qualified for the HST position. The S2 stated that "[Complainant] should have been able to step up and perform in the absence of her supervisor regarding routine, day to day kinds of things that are expected. [Complainant] failed to do so." S2 also testified that she expected that even if Complainant could not perform to the requirements of the position, routine reports were things that she should have been capable to provide. S2 stated that "If indeed, . . . she was the person qualified to take the job, I would have liked to have seen her succeed. But it was very clear within several months that she was not capable of learning the job. All the training in the world wasn't going to help her perform that job, and it wasn't actually fair to [Complainant]. It wasn't actually fair to the department that she put [sic] in a job she couldn't perform."
The AJ noted that S1 had considered Complainant to be "in training" and therefore, her expectations as to Complainant's performance may not have been as high as S2's expectations. Further, the AJ found that S1 failed to provide training to Complainant on several aspects of S1's job, prior to being detailed. S2 testified that she was unable to train Complainant in these areas, but expected Complainant to find "subject matter experts" who would help her learn how to perform the duties.
The AJ found that Complainant had not been performing many of the duties identified in her job description. Further, after S1 was detailed and S2 became Complainant's supervisor, Complainant was expected to fill in for S1 despite the fact that she was unfamiliar with some of S1's duties. Although this may have been unfair, the AJ found that Complainant did not provide probative evidence showing that S2's reasons were pretext for discrimination or retaliation. The AJ noted that it was undisputed that S2 discussed the specific problems with Complainant during the interim performance review. Complainant testified that S2 had counseled her regarding problems even prior to the review. Although Complainant offered several explanations as to why S2 should have lowered her expectations concerning her performance, Complainant failed to show that S2 was motivated by discriminatory animus.
The AJ awarded Complainant back-pay for the award she would have received from the pay pool had she been rated "3" rather than "1" by Chief2, $8000.00 in non-pecuniary compensatory damages, $16,668.75 in attorney's fees and $482.63 costs, and training for the responsible officials.
The Agency subsequently issued a final order adopting the AJ's decision, i.e., the Agency found that it retaliated against Complainant with regard to claim 1, but did not discriminate with regard to claim 2.
CONTENTIONS ON APPEAL
Complainant argues on appeal that, with regard to claim 2, the AJ erred in finding that she was not retaliated against. Complainant argues that the AJ accepted the credibility of the S2 and did not take into account the testimony of other witnesses who contradicted the S2's position. Complainant also argues that it makes no sense for the AJ to find that the Agency discriminated against her with regard to claim 1, but not claim 2.
On appeal, the Agency requests that the Commission affirm its adoption of the AJ's decision regarding claim 2.
ANALYSIS AND FINDINGS
The Commission has the discretion to review only the issue specifically raised in Complainant's appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November 9, 1999). As such, the Commission will only address the issues raised by Complainant in her appeal brief.
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, at � VI.B. (November 9, 1999).
Here, we find that Complainant has not offered sufficient evidence to show that the AJ's credibility determination should not have been accepted. Further, we note that nothing in the record demonstrates that the AJ's credibility determinations represented an abuse of discretion. Additionally, the Commission finds that the AJ's finding of no retaliation with regard to claim 2 is supported by substantial evidence in the record. Although Complainant clearly disagrees with the AJ's determination, she has not established that there was no support for the AJ's findings in the record with regard to claim 2. In claim 1, the AJ found that Chief2's concerns regarding Complainant's performance were never clearly documented and Complainant was blindsided by Chief2's assessment; however, the AJ clearly found that Complainant was not performing in a satisfactory manner and was informed of her deficiencies by S2. Complainant did not contest the AJ's findings that her performance was not sufficient. As such, we find that the AJ's determination regarding claim 2 is supported by substantial evidence in the record.
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 order adopting the AJ's decision. The Agency is required to comply with the ORDER below.
ORDER
The Agency shall take the following remedial action, to the extent it has not already done so, within one-hundred and twenty (120) calendar days of the date this decision becomes final:
1. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision.
2. All Agency records shall reflect that Complainant received a rating of "3" on her performance evaluation for the period July 8, 2007 to October 31, 2007.
3. The Agency shall pay Complainant non-pecuniary compensatory damages in the amount of $8,000.00.
4. The Agency shall pay Complainant $16,668.75 in attorney's fees and $482.63 in costs.
5. The Agency shall conduct EEO training for all management officials involved in the discriminatory evaluation in this case regarding their obligations under EEO statutes to avoid discrimination, especially retaliation.
6. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
POSTING ORDER (G0914)
The Agency is ordered to post at its Womack Army Medical Center at Fort Bragg, North Carolina, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled ""Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
_4/10/15_________________
Date
1 As the HST, Complainant's responsibilities included assisting S1 with personnel and budgetary tasks for the PM department. Complainant also supervised approximately eight Medical Service Assistants (MSAs) who were assigned to work in the different service areas in the PM Department. The MSAs' duties included answering the telephone and making patient appointments.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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