0120142367
05-20-2016
Hedy B.,1 Complainant, v. Eric Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hedy B.,1
Complainant,
v.
Eric Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120142367
Agency No. ARFTLWOOD11AUG03449
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 29, 2014 final decision concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Medical Support Assistant/Admissions Clerk at the Agency's General Leonard Wood Army Community Hospital, Patient Administration Division (PAD), Admissions and Dispositions in Fort Leonard Wood, Missouri.
On September 15, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her in reprisal for prior EEO activity when:
on June 1, 2011, she received a lower annual performance rating on August 15, 2011.
The record reflects that during the relevant period, Complainant's supervisor was her first line rater. The supervisor was responsible for Complainant's annual appraisal for the period of August 2, 2010 through August 14, 2011. Complainant's senior rater was her second level supervisor. On or about August 15, 2011, the supervisor and Complainant reviewed Complainant's Base System Civilian Performance Evaluation. According to the evaluation, Complainant was rated as a Level 3 ("Success"). Complainant challenged what was ultimately a change in her evaluation by the second level supervisor as retaliation for a June 2011 complaint filed with the Agency's EEO office.
After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew her hearing request. Consequently, the Agency issued the instant final decision on April 29, 2014, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant established a prima facie case of reprisal discrimination. The Agency stated, however, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Complainant, on appeal, argued that that the Agency erred finding no discrimination. For instance, Complainant stated "I disagree with this decision based on the evidence that I provided for this case in its entirety, supports every protocol that was written by the Department of the Army to protect its members in an act of illegal discrimination. The process which supports reporting the act of hostile working environment, target, humiliation, harassment, documentation of incidents, informing all chain of command including but not limited to the Commander as counter parts of listed Agency, The US Army Medical Command (MEDCOM), Human Resources, Equal Employment Opportunity (EEO) and Federal Union, that resulted in a reprisal on a performance rating, from my boss's supervisor, that was changed after the report of the third EEO complaint. No prior written counsel for improvement was given to me."
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record reflects the following events leading up to Complainant's evaluation. The supervisor stated that on May 16, 2011, she conducted a mid-point counseling with Complainant. The supervisor gave Complainant an overall rating of "Excellence" in all four categories (Technical Competence, Adaptability, Working Relationships and Communications, Responsibility and Dependability), because the supervisor determined that Complainant had done extra work that was outside of her assigned duties. Subsequently, the supervisor sent Complainant's "Excellence" rating to the second level supervisor for review. However, the supervisor stated that the second level supervisor informed her that she (the second level supervisor), did not feel that Complainant should be rated "Excellence" in all four performance elements.
Further, the supervisor stated that on August 15, 2011, she revised Complainant's rating and reworded the evaluation's "bullets." When Complainant's evaluation dated August 15, 2011, reached the Civilian Personnel Advisory Center (CPAC), it was returned with instructions that because the two portions of the appraisal were not congruent that the supervisor and the second level supervisor would need to change their portions so that they matched each other. The record reflects that the supervisor, second level supervisor, Captain, and the Deputy Commander for Administration met and came to an agreement regarding the appraisal.
With respect to Complainant's claim that her appraisal was lowered by the second level supervisor because of her prior EEO complaint, the supervisor stated that she never heard the second level supervisor state that she was going to give [Complainant] a lower rating because of Complainant's pursuit of the EEO complaint process.
The second level supervisor stated that she did not direct the supervisor to give Complainant a lower appraisal rating. Specifically, the second level supervisor stated "I told [supervisor] for her to give [Complainant] what she thought that she deserved. And I told her the thing is, is that I'm going to give her what I think she deserves. And when it went up to CPAC, they told her that we need to have a meeting of the minds, to come together, because it does not match. And, of course, according to the rating, it does not match, and it will not match." The second level supervisor stated that she and the supervisor "went back over that evaluation, we said - - to end it all, let's move forward and give [Complainant] a good evaluation, because they didn't counsel her, not because I didn't want her to be counseled, she wasn't counseled, to end it all, it was a good evaluation, give her that. It wasn't a bad evaluation...we came to a meeting of the minds that if - - to move on that - - because [Complainant] is a good employee when she's doing her job, she is a good employee, when she's doing her job, and she's here, I don't dispute that."
With respect to Complainant's allegation that she deserved a higher rating, the second level supervisor stated that Agency management had concerns with Complainant's attendance and performance. For instance, the second level supervisor stated that Complainant made more processing errors than other employees in the same position. The record reflects that the second level supervisor and supervisor received emails concerning Complainant's unprofessional conduct, including an occasion where Complainant left her work area unattended resulting in missed calls. The record also reflects that Complainant was the subject of at least three complaints regarding her verbal conflicts with other colleagues.
The second level supervisor stated that Complainant's prior protected activity was not a factor in Agency management's decision to give her a lowered rating. The second level supervisor stated that she did not retaliate against Complainant for filing an EEO complaint. Specifically, the second level supervisor stated "I knew of [Complainant] going to EEO. I never knew she filed an EEO complaint until I found out she had filed an EEO complaint in reference to this rating. So my thing about that is, how can I retaliate for an EEO complaint that I knew - - that I never knew of? I never knew she filed an EEO complaint."
The Deputy Commander stated that during the relevant period, she played the role of a mediator between the supervisor and the second level supervisor. The Deputy Commander stated that between the Captain, the supervisor and the second level supervisor, "there hasn't been a unified opinion and - - of multiple things that have gone on within PAD, so I've been trying to be the mediator on a couple of different things, things that have gone on." The Deputy Commander reviewed Complainant's evaluation and noted the differences between the supervisor and the second level supervisor "were way off...I directed them to go back and talk about it. I looked at the performance standards, enough to be able to kind of say, what are you rating her on specifically, because it's got to be based on the standards. And meeting the standards, not meeting the standards, needs improvement, meeting the standards, exceeds the standards, and so you can only be - - only doing the rating based off of that. And that's where they came back, talked about it, we negotiated it, and relooked at it based off of the standards."
Moreover, the Deputy Commander stated that she and Agency management did not retaliate against Complainant for her prior protected activity.
With respect to Complainant's claim that she was subjected to harassment and a hostile work environment by the second level supervisor, the second level supervisor stated that Complainant never informed her that she was being subjected to harassment. The second level supervisor stated "I've been here almost a year and a half, and I have spent almost this entire year and a half mostly with [Complainant]. I have been walking on eggshells trying to ensure that I do everything right; and I shouldn't have it. And I thought we were in a better place, I honestly thought we were in a better place."
The Hospital Commander stated that on September 13, 2011, Complainant came to see him and "frequently used the terms 'harassment' and 'hostile work environment,' however when I asked her to provide examples or characterize what she meant by these terms she could not provide specifics other than that she was unhappy at work because [second level supervisor] was not as friendly with [Complainant] as she felt she was with others in the section...after our meeting, I referred the issue to [Deputy Commander], our Deputy Commander for Administration since PAD falls in her lane. She and the PAD leadership were already looking into the situation involving [second level supervisor] and [supervisor], and this seemed to be related to that issue...[Deputy Commander] reported back to me that there was improvement in the work environment. From [Deputy Commander's] reports, and from my own interview with [Complainant], I determined that there was no evidence of harassment, or hostile work environment, but rather interpersonal issues between people did not get along well."
In sum, neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that the proffered reasons for the actions taken were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 20, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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