05A21217
06-17-2003
Anita Muneta, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Anita Muneta v. Department of Health and Human Services
05A21217
June 17, 2003
.
Anita Muneta,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 05A21217
Appeal No.01A13597
Agency No. 1HS00600
DENIAL OF REQUEST FOR RECONSIDERATION
Anita Muneta (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Anita Muneta v. Department of Health and Human Services,
EEOC Appeal No. 05A21217 (August 7, 2002). EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b) and the request
is hereby denied.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency were
a pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802).
Specifically, in a reprisal claim, according with the burdens set forth
in McDonnell Douglas, Hochstadt supra at 324, and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997),
complainant may establish a prima facie case of reprisal by showing that:
(1) she engaged in a protected activity; (2) the agency was aware of
her protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. The Commission's policy on retaliation
prohibits any adverse treatment that is based on a retaliatory motive and
is reasonably likely to deter the complainant or others from engaging in
a protected activity. EEOC Compliance Manual Section 8, �Retaliation�
No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire, v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
In the decision below, we concluded that complainant did not establish by
a preponderance of the evidence that she had been discriminated against
based on her sex, race or retaliation when she received a rating of
�Unacceptable� on her 1998 performance Appraisal and when she was placed
on a Performance Improvement Plan (PIP). We reached the same conclusion
regarding complainant's claim that she was discriminated against when
she was suspended for time and attendance lapses and for unauthorized
use of a government vehicle and when she was denied training.
Complainant contends that the Commission based its decision on an
erroneous interpretation of fact that she was rated unacceptable in
the area of financial management even though her medical facility
did not report a budget deficit. In her request for reconsideration,
complainant claims that the Commission failed to consider the fact that
a similarly situated employee (Caucasian, male, prior EEO activity) was
treated more favorably because his facility had a budget deficit but he
was not rated as unacceptable in his performance.<1> Even though this
fact is borne out by the evidence, complainant did not demonstrate that
the reason for the disparity was her race, sex or her prior EEO activity.
More specifically, the record demonstrated that complainant had been
rated in her performance by the Area Director, (Native American, male,
prior EEO activity) (RMO1) and the Deputy Area Director (Anglo, male,
prior EEO activity) (RMO3) since 1991. Both managers gave complainant
outstanding evaluations in all years except 1994 when she received
a rating of �Excellent.� At that time, RMO1 noted that complainant
needed to improve her performance in the area of financial management
and rated her �Fully Successful� in that element. In 1999, RMO1 rated
complainant unacceptable for the rating period October 1998 to December
1999 because her facility reported a budget deficit at the time of
the rating. We concluded that there was no evidence that RMO1 and RMO3
harbored discriminatory animus against complainant because of her race
and sex as they had consistently recognized her outstanding performance
in previous years. We further found that the evidence did not establish
an inference of reprisal because the time period was too long between
complainant's 1996 EEO complaint and the unfavorable performance rating
in 1999. There was no evidence that complainant engaged in any other
protected activity within that period of time.
Regarding RMO1's decision to suspend complainant, we found that
complainant did not demonstrate the agency's reasons for the suspension
were a pretext for discrimination. The evidence reflects that RMO1
stated that his decision to suspend complainant was based on her failure
to properly account for her time and attendance and her inappropriate
use of a government vehicle to transport a family member. The evidence
reveals that RMO1 initiated an audit of complainant's time and attendance
records in 1998 after becoming concerned about her use of leave.<2>
Complainant acknowledged that her frequent revisions to her requests
for leave caused problems in keeping proper account of her time and
attendance. In addition, RMO1 noted in the letter of proposed suspension
that complainant had been informed that credit time would not be approved
for Chief Executive Officers such as herself, but that she had claimed
115 hours of credit time in 1995 and 1996. Complainant responded to the
proposed suspension stating that she was not responsible for calculating
or keeping time records. She does not dispute the underlying conclusion,
however, that she had a negative leave balance. In addition, complainant
did not refute her time keeper's testimony that she failed to request
leave when she was absent or that she would change leave requests after
they had been approved.
Addressing the agency's suspension of complainant for unauthorized use
of a government vehicle, the Commission concluded that the agency had
legitimate non discriminatory reasons for taking disciplinary actions
against complainant because she violated agency regulations barring the
transport of persons other than certain government officials in government
owned vehicles. Although complainant submitted proof that her son was
a federal government employee, and that she transported him to work on
the day in question, it is clear that he did not fall within the group
of persons permitted to be transported according to the regulation the
agency cited. In addition, complainant did not demonstrate that others
were treated more favorably in their use of government owned vehicles.
Consequently, she did not demonstrate the agency's reasons were a pretext
for discrimination.
Complainant contends that she was denied Joint Commission on Accreditation
of Health Care (JCAHO) in August 1999, because of her race, sex and
in reprisal for her prior EEO activity. The record reflects that the
Executive Director (RMO3) (Native American, male, no EEO activity) denied
complainant's request for this training. According to his affidavit,
he acted as Area Manager when RMO1 was absent. Other than complainant's
assertion, there is no evidence to support her claim that RMO3's decision
was based on her race or sex. In addition, although RMO2 stated he was
aware of complainant's prior EEO activity, his action took place over
two years after complainant's protected activity in 1996. Therefore,
we found that the length of time was too remote to infer discriminatory
animus based on reprisal. See e.g.,Cummings v. Department of the Air
Force EEOC Appeal No. 01972343, aff'd Request No. 05990328 (March 16,
2001) (the period of time between the protected activity and the adverse
action was approximately two months and thus constitutes a period of
time sufficiently close to infer a causal connection).
Accordingly, the decision in EEOC Appeal No. 01A13597 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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, 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
June 17, 2003
__________________
Date
1The agency's FAD reports that this comparator
had prior EEO activity but there is no evidence in the record that such
was the case.
2Complainant contends the audit began in the fall of 1997 but she produced
no objective evidence to support her contention.