0220080010
02-18-2011
Agency.
Sharon Johnson,
Grievant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0220080010
Agency No. HUD-000102008
DECISION
On April 4, 2008, Grievant timely filed an appeal from the Agency's
March 10, 2008, final Step 3 decision concerning her grievance 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. � 1614.402(d).
For the following reasons, the Commission AFFIRMS the Agency's final
Step 3 decision.
ISSUE PRESENTED
The issue presented is whether the final grievance decision properly
determined that Grievant failed to prove that the Agency engaged in race
discrimination when it issued her a letter of reprimand.
BACKGROUND
At the time of events giving rise to this complaint, Grievant worked as
a Senior Project Manager at the Agency's Tampa, Florida Field Office.
In a letter dated October 18, 2007, Grievant's supervisor (S1)
issued her a letter of reprimand on the basis that Grievant failed to
follow instructions and accomplish tasks within specified time frames.
Exhibit C. The letter relayed nine instances from March 22 to October 1,
2007, in which Grievant allegedly failed to follow instructions, including
incidents wherein Grievant failed to participate in a conference call;
failed to update a Tampa housing project's rents in the Real Estate
Management (REM) System; failed to prepare certification and documentation
for the Departmental Enforcement Center (DEC) in a timely manner; failed
to provide a housing corporation with "permission to occupy" forms in
a timely manner; failed to obey S1's order to clear the back table of
project files; and responded to a request to provide a list of subsidized
apartments by stating that this was not a function performed by her.
Additionally, the letter stated that the tone of some of Grievant's emails
was disrespectful, and quoted portions of emails sent by Grievant to S1
from February 7, 2007 to September 21, 2007.
On December 3, 2007, Grievant filed a grievance in which she alleged
that the Agency discriminated against her on the basis of race
(African-American) when the Agency issued her a letter of reprimand
dated October 18, 2007.
On December 10, 2007, S1 issued a Step 1 decision in which she found that
Grievant was not subjected to race discrimination. On December 20, 2007,
Grievant requested that her grievance be advanced to Step 2. On February
30, 2008, the Agency issued a Step 2 decision, which also found that
Grievant was not subjected to race discrimination. On February 4, 2008,
Grievant requested that her grievance be advanced to Step 3, and in a Step
3 decision dated February 15, 2008, the Agency again found that Grievant
was not subjected to race discrimination. On February 29, 2008, Grievant
requested that the union invoke arbitration for her grievance, but on
March 10, 2008, the union denied Grievant's request for arbitration.
Consequently, the Step 3 decision became the Agency's final decision.
CONTENTIONS ON APPEAL
On appeal, Grievant argues that the Agency improperly found no
discrimination on her grievance. Grievant argues that the Agency's
explanations for reprimanding her are pretextual because she did not
receive any feedback before the issuance of the reprimand that reflected
that she had problems following instructions or filing matters in a timely
manner. Grievant further argues that emails cited by S1 as a basis for
the reprimand were taken out of context, and that S1 only quoted excerpts
from the emails in the letter of reprimand, instead of the entire emails.
The Agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
EEOC regulation 29 C.F.R. � 1614.401(d) provides that a grievant
may appeal to the Commission from a final decision of the agency,
the arbitrator, or the Federal Labor Relations Authority (FLRA) on a
grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised. The
Commission will only review that portion of the decision which pertains
to the grievant's employment discrimination claim, as it does not have
jurisdiction over any alleged violations of the collective bargaining
agreement. See 29 C.F.R. � 1614.301(a).
To prevail in a disparate treatment claim such as this, grievant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Grievant must
initially establish a prima facie case by demonstrating that he or she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. 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,
grievant 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
In this case, for purposes of analysis, we assume that Grievant
established a prima facie case of race discrimination. Nevertheless,
we find that the Agency provided legitimate, non-discriminatory reasons
for issuing Grievant a letter of reprimand. Specifically, S1 stated
that she issued Grievant the reprimand because, on several occasions,
Grievant failed to follow instructions, complete work assignments in a
timely manner, and disrespected her in emails.
Grievant contends that the Agency's explanation for reprimanding her is
pretextual because she did not receive any feedback before the reprimand
that reflected that she had problems following instructions or filing
matters in a timely manner. However, the record contains copies
of emails in which S1 raised concerns about Grievant's performance
on the Tampa Heights case and failure to timely supply forms to a
development corporation. Grievant further notes that she received a
"Fully Successful" annual performance rating a month after the issuance
of the reprimand, which contradicts the Agency's explanation for the
reprimand. Exhibit A. However, we find it significant that Grievant
did not receive the higher "Higher Successful" or "Outstanding" ratings
in 2007. Instead, she received a mid-level rating of "Fully Successful,"
which is not inconsistent Agency's explanations for her reprimand.
Grievant further argues that emails cited by S1 as a basis for the
reprimand were taken out of context, and that S1 only quoted excerpts
from the emails in the letter of reprimand, instead of the entire emails.
Although the reprimand letter only contained excerpts from Grievant's
emails, the record contains copies of the relevant emails in their
entirety. The emails reflect that in response to S1's inquires about
Grievant's performance, Grievant often responded in a manner that arguably
bordered on insubordination. For instance, when S1 expressed concerns
to Grievant about her failure to process rents into the REMS system
and inquired about the status of the matter, Grievant responded in the
following manner: "You can look in REMS and click on the 'finance radio
button.' And there at your finger tips is all the information you need to
answer the question you posed to me about the sale of Tampa Heights II."
Exhibit K. Additionally, when S1 asked Grievant to process a request
for "permission to occupy forms," Grievant responded, "Let's not pile on
multiple requests for the same item, it simply takes more of my time to
answer a subject email that I have already answered. Obviously, if I have
not sent it, it is my error and I intended to correct it ASAP." Id.
Grievant maintains that she was treated differently than a Caucasian
co-worker who sent disrespectful emails to her and other employees.
However, although the record reflects that the co-worker engaged in what
might be termed sarcastic exchanges with Grievant, there is no record
evidence that the co-worker's sarcastic comments were directed toward S1.
Exhibit D. As such, there is no evidence that the co-worker was similarly
situated to Grievant in this case.
Consequently, we find that Grievant failed to prove that the Agency's
legitimate, non-discriminatory explanation for reprimanding Grievant
was a pretext for unlawful race discrimination. Thus, we find that the
Agency properly found no discrimination.
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 decision for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Grievant 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 (Nov. 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).
GRIEVANT'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
February 18, 2011
Date
2
0220080010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0220080010