0120121594
07-26-2012
Leila K. Powers, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Leila K. Powers,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120121594
Agency No. ATL-11-0530-SSA
DECISION
On February 15, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 12, 2012, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint Complainant was the DPB Manager at the Agency's SEPSC in Birmingham, Alabama.
On June 23, 2011, Complainant filed an EEO complaint alleging she was harassed based on her race (Black), sex (female) and reprisal for prior EEO activity when, effective April 3, 2011, she was involuntarily reassigned from the position of Manager of the Disability Processing Branch (DPB), GS-14, to the position of Director of Division 1, GS-14 (Operations Manager) in the Agency's Southeastern Program Service Center (SEPSC).
The complaint was accepted for investigation. The evidence gathered during this investigation showed that SEPSC was headed by Complainant's first (S1) and second line supervisors (S2), and was comprised of five divisions and two separate branches. DPB had about 129 employees, with subordinates ranging from grade levels GS-4 to GS-13. Division 1 was one of the five divisions in SEPSC. As Director of this division, Complainant retained the same first and second line supervisors, and led over 200 employees through a supervisory staff of GS-13 supervisors.
The Regional Commissioner of the Atlanta Region, who was located in Atlanta, Georgia, stated he made the decision to reassign Complainant. He was one or more levels above S2. The Regional Commissioner indicated that he reassigned Complainant because her working relationships had deteriorated with her subordinate Contracting Officer's Technical Representative (COTR) (female), some other subordinate employees, and contract medical consultants. He explained that management had received a number of complaints about Complainant's management style from DPB employees and contract medical consultants, and headquarters staff was concerned about the ongoing complaints. He stated divisiveness had an impact on the effectiveness of DPB.
The Regional Commissioner added that Complainant informed him that she was not pleased with the COTR's performance, but admitted not documenting her concerns or discussing all of them with the COTR. He stated it is important to counsel an employee when recurring problems are first noticed, and he and the Deputy Regional Commissioner both advised Complainant not to use the mid-year appraisal to confront the COTR for the first time about any performance issues. They advised her to document performance deficiencies in writing and discuss these items with the COTR. The Regional Commissioner stated that, in spite of their instructions, Complainant did not take progressive steps to counsel the COTR before conducting the mid-year appraisal, and after learning she ignored their advice, this prompted him to reassign Complainant. The record shows that in the March 2011 mid-year appraisal of the COTR, Complainant gave a lengthy scathing account detailing performance and behavioral problems, with virtually no positive comments. Among other things, she accused the COTR of trying to turn branch management against her.
The Regional Commissioner stated Complainant's past performance showed a strength for managing an operation more along the lines of claims processing, so he thought the Operations Manager position was a better fit. He also stated that the Operations Manager had a layer of subordinate supervisors between Complainant and non-supervisory employees which would provide some softening in the way Complainant's management style was conveyed to the non-supervisory employees.
The Deputy Regional Commissioner of the Atlanta Region, who was also located in Atlanta, stated he concurred with the Regional Commissioner's decision to reassign Complainant. The Deputy Regional Commissioner stated his office received many complaints from DPB employees and contract medical consultants about Complainant's management style, and the reassignment would alleviate the tension in DPB. He stated they believed DPB was not operating as effectively or efficiently as it should because of this tension.
S2, who was located in SEPSC in Birmingham, Alabama, stated he was not involved in any deliberations and did he make a recommendation regarding Complainant's reassignment. He stated that while he would not presume to speak for the Regional Commissioner, members of the DPB management team complained to him and S1 that Complainant was a dictatorial micro-manager who would not listen to them or consider their explanations of why things were being done a particular way. He stated Complainant's staff perceived her to be a manager who disrespected, ridiculed, and demeaned them. He stated the contract Chief Medical Consultant (CMC) also complained about Complainant's management style. The S2 stated he gave credence to these complaints because he was aware of Complainant's management style before she reported as DPB Chief. He stated he made efforts to convey to Complainant that she should soften her approach to her staff, but the tension continued.
Complainant countered that the CMC engaged in fraudulent activities and was given wide latitude under her predecessor and S2, and she reported this to the Office of Inspector General (OIG) and the Office of Acquisition and Grants, which manages contracts. Complainant explained that the CMC prepared budget requisitions totaling over $1,500,000 for him and other medical consultants, recruited and hired medical consultants and assigned cases to them, and suggested this created conflicts of interest and these functions should have been performed by her subordinate Project Officer. Complainant contended that the CMC, who was being paid $92 an hour, was not doing medical reviews but instead primarily performing Project Officer duties, and the contract medical consultants did not meet productivity standards. Complainant wrote that a few months after she became DPB Manager in May 2008, she was harassed by the CMC, and this increased after she and the Project Officer relieved him from performing duties that violated his contract. Complainant described her efforts in 2008 and 2009 to address fraud and integrity issues by the CMC, and her involvement into April 2010 in efforts to cancel his contract.
Complainant wrote that a week after she started as DPB Chief, her predecessor said he was aware of Complainant's reputation of being very competitive and to leave the doctors alone. In February 2009, Complainant received a copy of an e-mail by the CMC which the Regional Commissioner's predecessor received. Complainant described the e-mail as follows: the CMC complained there were numerous problems since Complainant became Chief of DPB and the medical staff hired a law firm to represent them in a law suit against the Agency alleging a violation of the Whistleblower Act, harassment, and discrimination. Examples of the alleged harassment were being forbidden to use any government property if not work related, such as phones for personal calls or the internet even on breaks, and Complainant openly offering the job of CMC to another member of the medical staff. The CMC wrote that management refused to take medical advice from the medical staff, did not know how to control the case workflow, and productivity was greatly reduced.1
Complainant wrote that her predecessor, the CMC and a group of 4-5 employees in DPB maintained a vicious campaign against her by making false reports to the Regional Commissioner's predecessor, the Regional Commissioner, OIG, several congressional representatives, and the Commissioner of the Agency. The Regional Commissioner who reassigned Complainant assumed his job in January 2011. Complainant contended that in reassigning her the Regional Commissioner also relied on false information provided by the S2. Complainant told the EEO counselor that the CMC did everything he could to get her removed because she disrupted his power, influence, and financial gain.
Complainant contended that around August 2008, OIG found that the Agency did not have appropriate oversight or adequate internal controls over its contracts with medical consultants. She contended that a Management Initiated Review conducted in March 2009 found evidence existed that the CMC attempted to interfere with the successful operation of her branch and did things such as encouraging the withholding of pertinent information requested by disability branch management.
Complainant contended the COTR had an improper relationship of a sexual nature with S2 and because of this got the COTR job in April 2010, and was then protected even though she had conduct and performance problems. Complainant contended that S2 fed negative information against her to the Regional Commissioner because she had prior EEO complaint activity against S2 and reported the above sexual favoritism. The Regional Commissioner learned of Complainant's accusation of sexual favoritism in late February 2011. The Regional Commissioner requested that a team from Agency headquarters investigate, and the investigation was conducted in May and June 2011. The COTR and S2 denied to the investigative team that they had a sexual relationship and Complainant admitted she had no evidence and her accusation was based on rumor. The investigative team concluded that Complainant's accusation was unsubstantiated.
S1 stated that after she selected Complainant to be DPB Chief, the CMC and DPB managers complained about her selection, and they and the former DPB Chief were extremely upset about the selection. She stated that the majority of DPB managers were so upset that they retired or asked and received reassignments to other branches and divisions. S1 contended that the new managers worked well with Complainant, and Complainant was very successful in managing DPB, which resulted in numerous awards, but the CMC and former DPB branch chief never accepted Complainant and continued to report her to OIG and anyone who would listen. Complainant contended that some of the animus against her was because people wanted another specified person (black female) to get the Chief job, not her.
S2 stated it was true that the contract medical consultants in the Atlanta Region were performing tasks beyond the scope of their contract. He stated the Agency received an OIG report that this was occurring nationwide and Complainant was made aware of this when she became DPB Chief. S2 stated that instead of working collaboratively with the CMC, she dealt with it in a way that caused tension with the medical consultants, and she alienated them in the manner she dealt with the assignment of tasks to them.
After Complainant was reassigned, the first acting DPB Chief was a black female, the second acting Chief was a white female, and effective in September 2011, the Agency selected a black female as the new DPB Chief.
Following the investigation into her EEO complaint, the Agency gave Complainant the right to request a hearing before an EEOC Administrative Judge (AJ), and she requested a FAD.
In its final decision, the Agency found that Complainant failed to prove discrimination. The Agency found that Complainant did not make out a prima facie case of reprisal discrimination because the Regional Commissioner, who made the decision to reassign her, was not aware of her prior EEO complaint activity, and reporting an improper sexual relationship did not give rise to an EEO reprisal claim. The Agency found that Complainant did not make out a prima facie case of race or sex discrimination because she did not show she was disparately treated. The Agency credited the Regional Commissioner's reasons for reassigning Complainant, and found Complainant failed to prove pretext.
On appeal Complainant submits two additional rebuttal statements. She states that in her discussion with the Regional Commissioner prior to the mid-year appraisal, she showed him e-mails documenting her discussions about performance with the COTR, and denied telling him she did not document the COTR.
Complainant denied that she had power over the medical consultants, contending that in January 2010, they were placed under the authority of OAG, and while it appeared this changed when the Regional Commissioner arrived in January 2011, they were never informed of this. Complainant argues that there was not a problem with the efficiency of the operation of DPB, that she received leadership awards and outstanding ratings in the area of leadership in her performance appraisals. She argues that had statements been taken from specified witnesses they would have corroborated her account of conflict of interest, performance, and acts of fraud by CMC and medical staff, as applicable. She argues that statements from other witnesses would have shown that the primary problem in DPB was caused by the CMC. Complainant counters the Regional Commissioner's statement that she was moved to Division 1 partly because it had an intermediate supervisory layer between her and non-supervisory employees, arguing that DPB also had such an intermediate supervisory layer. She previously argued that around the time the decision was made to reassign her a decision was made to transfer responsibility for the medical staff and the COTR to the regional office, obviating the need to reassign her.
In opposition to the appeal the Agency argues that Complainant did not make out a prima facie case of reprisal discrimination, mirroring in part, the reason in the FAD. It adds that regarding S2 protecting the COTR, this alleged sexual favoritism was not directed at Complainant, and hence cannot form the basis of a reprisal claim. Citing Commission case law, the Agency argues that isolated incidents of favoritism based on a sexual romantic relationship do not violate Title VII because both men and women are equally disadvantaged for reason other than their gender. The Agency also argues that Complainant did not show S2 was involved in her reassignment. The Agency argues that Complainant has not shown that the CMC, in complaining about Complainant, was motivated by race or sex discrimination. Rather, Complainant was contending the CMC wanted her removed because she disrupted his power, influence, and financial gain, and Complainant did not deny conflict existed involving her staff. The Agency argues that in DPB there was no intermediate supervisory layer between Complainant and the COTR and her Project Officer. The Agency argues that the investigation was adequate, and that the FAD should be affirmed.
ANALYSIS AND FINDINGS
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 he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In this case, the responsible management officials have articulated legitimate, nondiscriminatory reasons for the decision to reassign Complainant. The Regional Commissioner indicated he reassigned Complainant because her working relationships deteriorated with her COTR, contract medical consultants, and some other subordinate employees, and they complained about Complainant's management style. It is uncontested that these people complained repeatedly about Complainant. Complainant wrote that her predecessor, the CMC and a group of 4-5 employees in DPB maintained a vicious campaign against her by making false reports to the Regional Commissioner's predecessor, the Regional Commissioner, OIG, several congressional representatives, and the Commissioner of the Agency. S2 stated that the tenor of the complaints was that Complainant was a dictatorial micro-manager who would not listen to them or consider their explanations of why things were being done a particular way. He stated Complainant's staff perceived her to be a manager who disrespected, ridiculed, and demeaned them.
Complainant has failed to prove, by a preponderance of the evidence, that the proffered reason for her reassignment was a pretext to mask discrimination. While Complainant stated that she took action against people because of performance and conduct deficiencies, the Regional Commissioner was free to reassign Complainant, in the absence of discrimination, because he disagreed with the way Complainant went about this, leading him to the opinion that she created undue tension in her branch. As stated by S2, OIG confirmed contract medical consultants nationwide were performing tasks beyond their scope, and rather than work collaboratively to resolve issues, Complainant dealt with them in ways that caused tension. We note that some witnesses corroborated Complainant's suggestion that complaints about her by the CMC, the medical staff, and the COTR stemmed from their reactions to her correcting their deficiencies. However, this would not show the Regional Commissioner was motivated by discrimination in reassigning Complainant because of his belief that her management style created undue tension in her branch.
The record supports management's contention that Complainant engaged in a campaign of confrontation against the medical consultants. Contrary to Complainant's suggestion that she had little power over the medical consultants, in the COTR's mid-term appraisal Complainant wrote DPB was to direct or assist the work on medical consultant staff, assign them cases, monitor their progress, and so forth. Complainant concedes that after she assumed her position her predecessor expressed concern about how she would treat the contract medical consultants, and around February or March 2009 the Regional Commissioner's predecessor asked her to get back to a positive working relationship with them. The concern with Complainant's approach was long standing.
Likewise, the Regional Commissioner advised Complainant not to use the mid-year appraisal to confront the COTR about her performance issues. Complainant nevertheless did so. An examination of the wording of the mid-year appraisal supports management's contention that it contained harsh and accusatory criticism, including accusing the COTR of trying to turn people against Complainant, that would make it difficult to have a productive working relationship with the COTR. The Regional Commissioner stated the mid-year appraisal was one of the reasons Complainant was reassigned. While Complainant disputed the Regional Commissioner's statement that she admitted to not previously documenting the COTR, a denial we find likely true since the mid-year appraisal evidences much documentation and some counseling, she does not deny that she was advised not to use the mid-year appraisal to confront the COTR about her performance issues.
Complainant argues that she received very positive appraisals and awards for her leadership, and this undermines the Regional Commissioner's reasons for reassigning her. We note that her 2010 appraisal by S1 gave her the highest rating (5) in every element except interpersonal skills, which she rated a 3, which provides some corroboration of problems with interpersonal skills. While Complainant contends her branch operated at peak efficiency, there is evidence that the contracted medical staff, over whom her branch had some responsibility, had performance issues, many of which pre-dated Complainant but which continued after her tenure. Complainant also contended that around the time the decision was made to reassign her, a decision was made to transfer responsibility for the medical staff and the COTR to the regional office, obviating the need to reassign her. But Complainant's relationship with some DPB staff was still bad, and she has not shown that the branch did not need a good working relationship with the contracted medical consultants since it was responsible for developing disability cases, which would presumably require working with the medical consultants. Also, in light of the history of poisoned relationships in DPB, the Regional Commissioner's decision to reassign Complainant to a division which he believed better fit her skills has not been shown to be unreasonable.
While Complainant viewed Division 1 as having less status than DPB, the consistent statements of Agency management were that they did not believe this to be so, which we find credible. DPB and Division 1 were at the same level on an organizational chart, with the division being larger. Also, the replacement DPB Chief was a black female, making it less likely sex and race played a role in reassigning Complainant.
In sum, Complainant has failed to prove that the Agency's reasons for reassigning her were pretext to mask discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD which found no discrimination.
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
July 26, 2012
__________________
Date
1 Complainant wrote that the Regional Commissioner's predecessor told her and S2 to resolve the concerns of the CMC and the entire medical staff to their satisfaction, to give them permission to use government phones, and that they needed to get back to where they were previously in terms of a positive working relationship with the medical staff in Birmingham.
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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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