0120070823
11-10-2008
Carol G. Taylor, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Carol G. Taylor,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120070823
Agency No. 06-012-CMS
DECISION
On November 25, 2006, complainant filed an appeal from the agency's August
19, 2006 final decision 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. For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Health Insurance Specialist at the agency's Centers for Medicare
and Medicaid Services facility in Atlanta, Georgia. On March 6, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of race (African-American), sex (female), and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when:
1) Since August 2005, S1 (complainant's immediate supervisor)
harassed complainant by overly scrutinizing her work products.
a. On August 2, 2005, S1 refuted the advice of the Social Security
Administration (SSA) and advised complainant to quote the SSA Act;
b. On August 25, 2005, S1 directed complainant to make a change
that complainant believed to be erroneous;
c. On September 7, 16, 19, and October 6, 2005, S1 edited
complainant's work that reflected only preferences in writing style;
d. On November 3, 2005, S1 remarked, "you all get to those overdue
cases," which complainant believed to be sarcastic;
e. On November 18, 2005 and February 7, 2006, S1 directed complainant
to repeat information to a beneficiary that had been given previously;
f. On November 22, 2005, S1 received an assignment to investigate
information already explained in correspondence and again refuted the
advice of the SSA;
g. On February 24, 2006, S1 asked complainant to "fix" a case
referred to complainant's office, and when complainant explained that
the agency cannot "fix" the case, S1 disregarded complainant's advice;
h. On February 28, 2006, S1 asked complainant to draft a letter
regarding reopening a hearing and provided complainant with incorrect
information, resulting in multiple changes to the letter; and
2) On October 31, 2005 and January 25, 2006, S1 changed complainant's
work assignments leaving her with a heavier workload than her co-workers.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
In its decision, the agency found that complainant had not previously
participated in the EEO process, but based her reprisal claim upon prior
union activity. The agency therefore found that complainant did not show
that reprisal for prior protected activity motivated any of the agency's
actions. Further, with respect to claim (1), for each instance where
complainant believed her work was being overly scrutinized, S1 explained
that she reviewed complainant's work for accuracy and responsiveness as
complainant's supervisor. The agency found that S1 provided a legitimate,
non-discriminatory reason for each of the actions that complainant found
objectionable. The agency noted that another manager (S5) confirmed
the need to make changes to the majority of the letters produced.
S5 recalled making technical and grammatical changes to complainant's
letters. The agency found that even if all of the events described by
complainant occurred as alleged in her complaint, that complainant did
not show that S1's actions were motivated by complainant's race or sex.
The agency concluded that complainant failed to prove that she was
subjected to discrimination as alleged.
Regarding claim (2), the agency found that complainant established a
prima facie case of race and sex (but not reprisal, as noted herein)
discrimination in that complainant alleged that S1 changed her work
assignments which resulted in complainant being assigned to a heavier
workload than two other co-workers, a White female (E1) and a Hispanic
male, (E2) who were also Health Insurance Specialists. S1 explained
that she assigned Part D policy work to E2, not knowing the volume
of the Part D work. S1 was aware that complainant and other Health
Insurance Specialists (E3 and E4) had complained about too much stress.
Accordingly, knowing that Part D work was a very stressful position,
she assigned it to E2. S1 also stated that she divided up the remaining
work among the rest of the staff. S1 states that workload records do not
indicate that complainant had more work than others. The agency found
S1 explained that the work was divided fairly and that complainant did
not show that the agency's explanation was pretext or unsupported by
documentary evidence. Accordingly, the agency found that complainant
did not show that she was subjected to race or sex discrimination as
alleged in claim (2).
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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). Complainant
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, 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
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
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we concur with the agency that complainant has
not shown that prior to the events described in her complaint, that she
participated in the EEO process or otherwise opposed an agency policy or
practice she believed to be discriminatory. We therefore find the agency
properly found that complainant did not establish a prima facie case of
reprisal discrimination with respect to either claim (1) or claim (2).
We find the agency properly analyzed complainant's harassment claim
(1). Specifically, we note that the incidents complainant describes as
scrutiny of her work by S1, while unwelcome, were not overly abrasive or
demeaning and appear to be typical of those made by supervisors engaged
in the preparation of official correspondence for which agency management
is ultimately responsible. We find, as did the agency, nothing in the
evidence suggests that complainant's race, sex, or retaliation motivated
S1 to review complainant's work more closely or critically than any
other work, and that even if complainant was offended by S1's remarks,
that the incidents described do not rise to the level of harassment.
We further concur with the agency that complainant did not show the
agency's explanation with respect to claim (2) was unworthy of belief.
Rather, we find the assignment of tasks described in the complaint to
be the type of management well within S1's supervisory role and that S1
provided reasons for her decisions that complainant did not show were
a pretext to mask discrimination.
Based on a thorough review of the record, we AFFIRM the agency's final
decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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
November 10, 2008
__________________
Date
2
0120070823
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120070823