0120073316
12-28-2007
Sharyn Algood, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Sharyn Algood,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120073316
Agency No. 06-2219
Hearing No. 460-2006-00132X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 5, 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. Complainant alleged that management
harassed and retaliated against her when it issued her a suspension on
June 2, 2005.
Complainant timely requested a hearing before an EEOC Administrative
Judge (AJ) which was held on June 18, 2007. In a bench decision issued
that day, the AJ concluded that although complainant had established a
prima facie case of retaliation, she had not established a prima facie
case of harassment. Moreover, the AJ found that the agency presented
legitimate, non-discriminatory reasons for its actions which complainant
failed to rebut with evidence of pretext. The agency adopted the AJ's
decision as its final order.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ's decision fails to follow the
Supreme Court's dictates in Burlington Northern & Santa Fe Railway Company
v. White, 126 S.Ct. 2405 (2006). She claims that she suffered adverse
treatment in retaliation for filing an EEO complaint and, according to
Burlington Northern, this is a sufficient showing for her to prevail on
her claim. She also insists that she presented proof that the agency's
reasons for taking action against her were pretextual. She states that
the affidavits of other managers controvert S1's explanations for her
actions and, as such, S1's testimony is inconsistent and non-credible.
Complainant insists that retaliation is evident from the fact that
although she worked under S1 for over 15 years, it was only after
complainant filed an EEO complaint that their working relationship
deteriorated drastically.
The agency responds, arguing that there is no error in the AJ's decision.
The AJ correctly found that complainant did not establish a prima
facie case of harassment and did not prove that management's reasons
for its action were a pretext for discrimination. The agency points
out that the AJ found complainant's testimony regarding her troubles
with S1 non-credible and that the hostile environment that permeated in
the office was due not to retaliation, but rather to the uncertainty
surrounding the imminent reduction in force (RIF). As such, it was
proper for the AJ to find no evidence that the alleged harassment was
based on a protected factor.
STANDARD OF REVIEW
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 Brd., 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. On the
other hand, the AJ's credibility determinations based on the demeanor
or tone of voice of the witnesses 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. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Upon review of the record and the hearing transcript, we find that
substantial evidence supports the AJ's conclusions. To begin, we
find no error in the AJ's application of the law of retaliation as
complainant implies. Complainant has indeed made out a prima facie
case of retaliation; however, the weight of the evidence simply does not
support a finding in her favor because she has not proven that management
took action to punish her for protected activity. In fact, the record
shows that during the time in question, the future of the Houston office
faced much uncertainty. The imminence of a reduction-in-force (RIF) and
conflicts with new management out of Austin concerned all supervisors
and employees. Added to this environment were the poor management
skills of S1 that, according to other managers, made most employees, not
just complainant, unhappy. Without question, complainant and all other
employees at the Houston office endured difficult working conditions;
however, we, like the AJ, do not find evidence of an intent to retaliate
against complainant.
Turning now to the harassment claim, we note that such a claim is
actionable only if it is sufficiently severe or pervasive so as to alter
the conditions of the complainant's employment. Complainant must prove
that: (1) she was subjected to harassment that was sufficiently severe
or pervasive to alter the terms or conditions of employment and create
an abusive or hostile work environment, and (2) the harassment was based
on membership in a protected class. See Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6 (Mar. 8, 1994).
As discussed above, even if we assume criterion (1) is met, we still
find that criterion (2) is not satisfied. Complainant has not shown that
management's actions were prompted by a desire to retaliate against her.
See Oakley v. United States Postal Serv., EEOC Appeal No. 01982923
(Sept. 21, 2000). We also agree with the AJ that management provided
legitimate, non-discriminatory reasons for its actions.1 Furthermore,
we agree that complainant has not rebutted the agency's reasons with
evidence of pretext.2
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the final
agency order because the Administrative Judge's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
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
December 28, 2007
__________________
Date
1 We remind complainant the agency's burden in this regard is one
of production of evidence, not of persuasion. Complainant bears the
ultimate burden of proving that the agency's actions were discriminatory.
The agency meets its burden of production when it provides, "a specific,
clear, and individualized explanation for the treatment accorded
complainant." Miller v. United States Postal Serv., EEOC Appeal
No. 01A55387 (June 9, 2006). The evidence here shows that the agency
has done so.
2 In this regard, we have consistently noted that pretext can
be demonstrated by "showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the [Agency's]
proffered legitimate reasons for its action that a reasonable fact finder
could rationally find them unworthy of credence." Dalesandro v. United
States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (citing
Morgan v. Hilti, Inc., 108 F3d 1319, 1323 (10th Cir. 1997)). Although
complainant argues on appeal that S1's affidavit is contradictory, we
are not so persuaded. After having reviewed the evidence, we do not
find that the alleged contradictions are material proof of pretext.
We further note that complainant raised these very concerns to the AJ
and that the AJ made credibility judgments and ultimately concluded that
complainant's arguments are not sufficient proof of pretext. We defer
to those judgments.
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0120073316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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