01A31587
08-04-2003
D'ola J. Wooding, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
D'ola J. Wooding v. Department of the Treasury
01A31587
08-04-03
.
D'ola J. Wooding,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A31587
Agency No. 983225R
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
Facts and Procedural History
Complainant had been employed as a tax examining clerk in the EP/EO at
the agency's Central Region's Cincinnati District Office since 1991.
In February 1996, complainant began receiving workers compensation
benefits due to a job related medical problem, and she was assigned
leave without pay (LWOP). In December 1997, complainant learned that
her workers compensation benefits were terminated. After complainant
inquired about this situation, complainant was asked by the chief of her
division (CD) what her work intentions were since her LWOP status had
lasted longer than one (1) year. CD suggested she consider disability
retirement or voluntary resignation. In his letter, CD stated that he
would not be able to approve complainant's absence and retain her on
employee rolls indefinitely. He stated that unless complainant became
available for regular, full time duty, �consideration may be given to
possible removal from the Service.� Complainant's response asked for
agency policy for employees with compensable injuries and pending
EEO cases, alternative options for similarly situated employees,
and the number of hours she had been charged absent without leave
(AWOL). CD's response included that (1) the worker's compensations
center ruled that complainant was no longer totally disabled, (2)
there were no similarly situated employees because the EP/EO Division
had no employees receiving workers compensation in the past six years,
(3) other divisions require employees to return to work when they are
medically able, (4) the agency was unaware of any EEO claim regarding
complainant, and (5) complainant was charged with 536 hours of AWOL
beginning the date worker's compensation ceased. On March 25, 1998,
complainant was notified of her proposed removal because she had been
AWOL since October 15, 1997. Complainant requested to be retroactively
approved for LWOP status and to review her Employee Performance File
(EPF). In a series of correspondences between complainant and CD after
that time, the proposed removal was rescinded because complainant was
never actually removed from LWOP status and complainant's compensation
benefits were restored. Complainant was also informed that all items
were purged from her EPF except four (4) annual evaluations, as it is
the practice of the Ohio District to purge EPF's on an annual basis.
On July 10, 1998, complainant filed a formal complaint alleging that
she was discriminated against on the bases of race (African-American)
and reprisal for prior EEO activity when:
Beginning on or about April 7, 1998, complainant was continually denied
employee information;
On or about February 23, 1998, when complainant received a letter
informing her that she was being charged with AWOL, and was denied her
Family Medical Leave Act benefit rights;
On or about March 25, 1998, complainant received a letter proposing to
terminate her employment with the agency;
At an unspecified time, complainant's numerical ratings and narrative
on her performance appraisal were altered; and
On December 23, 1997, management asked her to voluntarily resign or file
for disability retirement.
The agency dismissed the complaint for failure to state a claim.
On appeal, the Commission concluded that complainant's absence from work
precluded a finding of hostile work environment, and affirmed the agency
regarding claims (1), (2) and (5). However, the Commission reversed and
remanded claims (2) and (4) because they asserted a harm or loss with
respect to a term, condition or privilege of complainant's employment. See
Wooding v. Department of the Treasury, EEOC Appeal No. 01994632 (Dec. 6,
2001). At the conclusion of the investigation of claims (2) and (4),
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. When the complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant did not establish
a prima facie case of racial discrimination or reprisal. Moreover,
the FAD stated that assuming arguendo that complainant did establish
a prima facie case, the agency articulated a legitimate reason for the
notice of removal. After being granted three time extensions to file a
brief in support of this appeal, complainant failed to submit a statement
on appeal. The agency submits that complainant is not aggrieved because
the proposed removal was rescinded, and her lower evaluations have not
harmed any term, condition or privilege of her employment. It requests
that we affirm its final order.
ANALYSIS AND FINDINGS
Although the initial inquiry of discrimination usually focuses on whether
the complainant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,
the inquiry shifts from whether the complainant has established a prima
facie case to whether she has demonstrated by preponderance of the
evidence that the agency's reasons for its actions merely were a pretext
for discrimination. Id.; see also United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 714-717 (1983). Because the agency
has proffered a legitimate, nondiscriminatory reason for the alleged
discriminatory events, complainant now bears the burden of establishing
that the agency's stated reason is merely a pretext for discrimination.
Shapiro v. Social Security Administration, EEOC Request No. 05960403
(December 6, 1996). Complainant can do this by showing that the agency
was motivated by a discriminatory reason. Id. (citing St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993)). In this case, complainant has
failed to meet that burden.
In the instant case, the agency was under the mistaken belief that
complainant was charged AWOL and that her benefits had been terminated.
When it realized the mistake, the agency promptly rescinded the proposed
removal. The supervisor in charge of complainant's EPF stated that
complainant's appraisals were not altered. The record indicates that the
appraisals were prepared in accordance with the NTEU agreement of the
time, so numerical ratings for the critical elements were transferred
from the previous year. The supervisor stated that the non-critical
element was lowered because there was no documentation of complainant's
activities on the Federal Executive Board Committee. The supervisor also
stated that she included a new narrative in complainant's file of her
own observations of the complainant because she had been complainant's
supervisor for only six (6) months. The Commission has held that
where a complainant expressed resentment at receiving a lower rating,
and felt it was unfair, such expressions do not, without more, trigger
reasonable suspicion of discrimination. See Murphy v. Social Security
Administration, EEOC Request No. 05950827 (December 11, 1997).
Complainant refers to an NTEU report which allegedly shows that
African Americans are disciplined at a higher rate than their White
Caucasian counterparts. Complainant however, never provided this report
as evidence. Moreover, while statistical evidence can be relevant in
claims of individual disparate treatment, statistics alone will not be
sufficient to prove pretext. Stevens v. Equal Employment Opportunity
Commission, EEOC Appeal No. 01970848 (Aug. 14, 1997). Complainant has
not provided any other evidence that the agency's reasons were a pretext
for discrimination, nor does the record indicate there is any causal
connection between complainant's prior EEO activity and the current
claims. In addition, there is nothing in the record which supports
complainant's claim regarding the Family Medical Leave Act (FMLA).
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
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
____08-04-03______________
Date