01a62198
09-22-2006
Lourdes Sherwood, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Lourdes Sherwood v. Department of Veterans Affairs
01A62198
.
Lourdes Sherwood,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A62198
Agency No. 200P-0664-2005102876
DECISION
Complainant, a Civilian Pay Technician, GS-7, filed a formal EEO complaint
in which she claimed that the agency discriminated against her on the
bases of her race (Asian-American) and in reprisal for her previous EEO
activity under Title VII when she was issued her mid-year performance
review. The record shows that a memorandum dated May 17, 2005, concerning
the mid-year review, discussed concerns the Supervisor, Processing and
Records/Payroll had about the way complainant was handling customers.<1>
The agency accepted the complaint and conducted an investigation.
Thereafter, the agency notified complainant of her right to elect either
a hearing before an EEOC Administrative Judge or a final action issued
by the agency. Complainant requested an immediate final action without
a hearing. On January 12, 2006, the agency issued a final action wherein
it determined that no discrimination occurred. According to the agency,
complainant failed to establish a prima facie case under the alleged
bases. With regard to complainant's claim of race discrimination, the
agency determined that complainant failed to identify similarly situated
non-Asian employees who received more favorable treatment than she
received at the mid-year performance review. As for complainant's claim
of reprisal, the agency noted that complainant's supervisor was unaware
of complainant's most recent EEO activity, initiated in May 2004, as he
had only supervised complainant since October 2004. The agency further
stated that a retaliatory motive could not be inferred as a full year had
passed since complainant's most recent EEO activity. Assuming arguendo,
that complainant had established a prima facie case, the agency stated
that complainant failed to adequately attend to the needs of the customers
in numerous instances. The agency stated that in an effort to assist
complainant in improving her performance, management provided her with
copies of the only materials available, a record of the relevant e-mails.
The agency determined that it articulated a legitimate, nondiscriminatory
reason for its mid-year review of complainant's performance. The agency
determined that complainant offered no evidence to establish pretext.
On appeal, the agency asserts that complainant's supervisor indicated
that the memorandum was just for complainant's information and would not
be included in her official personnel file. According to the agency,
certain customers expressed concern about the manner in which complainant
responded to their payroll issues. The agency states that complainant's
supervisor advised complainant of these concerns in an attempt to assist
her in improving her performance. The agency states that complainant
received copies of the e-mail communications upon which her supervisor
based the mid-year performance review. The agency argues that the e-mail
messages from complainant's customers were relevant and supported her
supervisor's decision to issue the memorandum addressing the customer
service concerns. In conclusion, the agency asserts that such evidence
fails to reveal any discriminatory animus.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
For complainant to prevail, she must first establish a prima facie
case 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.
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. 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 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
We will assume, arguendo, that complainant has established a prima facie
case of discrimination on the bases of race and reprisal. Next, we shall
consider whether the agency articulated legitimate, nondiscriminatory
reasons for its actions. The agency stated that complainant received a
supervisory memorandum with her mid-year performance review that advised
her of numerous customer complaints about her performance on the telephone
and in person. According to the agency, numerous employees had reported
their dissatisfaction with complainant's performance in her handling of
their payroll concerns. The agency stated that it provided complainant
with copies of the only materials that were available as part of an effort
to assist her in improving her performance. The Commission finds that the
agency articulated legitimate, non-discriminatory reasons for its actions.
We find that complainant failed to refute the agency's stated reasons
for its actions. Complainant argues that the memorandum, mid-year
performance review and the insufficient information provided by the
agency constituted harassment. We find that the alleged actions are not
of sufficient severity or pervasiveness to constitute harassment and
that such actions were not motivated by discrimination. Therefore,
we find that complainant was not subjected to harassment on the bases
of her race and reprisal.
Complainant has not shown that the agency's stated reasons for issuance of
the memorandum and mid-year performance review were pretext. Complainant
has not refuted the agency's position that her job performance reflected
significant customer service deficiencies. Complainant also has not shown
that the agency denied her access to any information within its possession
that would have been of assistance to complainant in improving her job
performance. We find that complainant failed to show by a preponderance
of the evidence that she was discriminated against on the bases of her
race or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 22, 2006
__________________
Date
1The memorandum states that it will not be
placed in complainant's Official Personnel File.