Edythe Davidson, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionApr 16, 1999
01983413 (E.E.O.C. Apr. 16, 1999)

01983413

04-16-1999

Edythe Davidson, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Edythe Davidson v. Department of the Treasury

01983413

April 16, 1999

Edythe Davidson, )

Appellant, )

) Appeal No. 01983413

v. ) Agency Nos. 96-4079; 97-4008

) Hearing No. 280-97-4140X

Robert E. Rubin, )

Secretary, )

Department of the Treasury, )

(Internal Revenue Service), )

Agency. )

DECISION

The Commission accepts appellant's timely appeal from a final agency

decision ("FAD") concerning her complaints of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001. In

her complaints, appellant alleged that she was discriminated against

based on her race (Caucasian) when: (a) she was required to stay on

the telephone answering taxpayer calls during work hours; (b) required

to account for her telephone time; (c) required to adhere to break and

lunch schedules; and (d) required to arrive at work on time; and she

was subjected to discrimination on the bases of race and reprisal for

her prior EEO complaint when (e) she did not receive a cash reward in

association with her performance appraisal because her supervisor did

not submit the award recommendation to personnel.<1> For the reasons

set forth below, the Commission AFFIRMS the FAD.

Appellant and two of her Caucasian coworkers alleged that a supervisor

(the "Supervisor," African-American) subjected them to disparate

treatment in their positions as Tax Examining Clerks, GS-5. Their unit

was responsible for responding to a high volume of telephone calls

from taxpayers and businesses applying for tax identification numbers.

The unit was composed of 20 Tax Examining Clerks/Assistants, five (5) of

whom were African-American and 14 of whom were Caucasian. In September

1985, their permanent supervisor left and the Supervisor was detailed into

the position for six months. Appellant contended that the Supervisor had

"double standards" for Caucasian employees and permitted three of the

five African-American Tax Examining Clerks/Assistants to not do their

work; another Control Clerk (African American) also allegedly was not

required to work. Appellant contended that, among other matters, these

four employees were permitted to: take lunch together, although they did

not have the same scheduled lunch periods; exceed their break times and

take more than the permitted number of breaks; arrive consistently late;

habitually be absent from work; be away from their desks; make excessive

personal calls; and sign out early rather than staying on the telephones

until the end of the day. In addition, it was alleged that these four

employees would input codes indicating that they were taking a taxpayer

call when in fact they were on break, and that they frequently inputted

incorrect codes when actually taking calls. Although the Caucasian

workers complained to the Supervisor, it was alleged that she never

confronted or disciplined these four employees.

Appellant timely sought EEO counseling and filed her instant EEO

complaints, which were accepted and investigated by the agency.

Thereafter, appellant timely requested a hearing before an EEOC

Administrative Judge ("AJ"). After a hearing, the AJ issued a recommended

decision ("RD") finding no discrimination. The agency adopted the RD

as its FAD.

In the RD, the AJ noted that agency officials testified that they had

received complaints about the Supervisor's performance in her prior

supervisory position, although those complaints alleged that the

Supervisor favored Caucasian employees. The Supervisor was viewed

as a minimally successful manager and the Branch Chief (Caucasian)

had recommended that she be placed in a non-managerial position.

When the Supervisor's detail ended, her successor found the unit to be in

disarray; racially polarized; and plagued by severe productivity problems.

In addition, the Supervisor had not filed the required weekly work reports

or time sheets and had not completed a number of performance appraisals.

The new supervisor testified that specific African-American employees

(including those cited by appellant) were making excessive personal

telephone calls, reading at their desks, and extending breaks and

lunch periods. The new supervisor formally counseled these employees

and ultimately terminated two of them for abuse of leave.

The Supervisor testified that after she spoke to several employees (both

Caucasian and African-American) about their actions, their behavior

improved temporarily, but soon reverted back. She conceded that she

never formally counseled or disciplined anyone.

As for allegation (e), the AJ found that the evidence established that

the Supervisor did not properly handle any administrative matters,

including performance appraisals and awards, as well as basic reports

and filing. Indeed, the Supervisor failed to complete even a single

performance appraisal on time, and most had not been done at all,

including appraisals for Caucasian and African-American employees entitled

to receive cash awards.

Both at the hearing and by affidavit, numerous employees offered testimony

regarding the actions of the Supervisor. The AJ found that, contrary to

appellant's assertions, the Supervisor had brought performance problems

to the attention of both Caucasian and African-American employees.

While appellant contended that the Supervisor should have instituted

formal discipline or otherwise taken action which would have corrected the

problems, the AJ found that the Supervisor failed "to address problems in

any meaningful fashion with [any of] her employees." The AJ noted that,

for example, that after both Caucasian and African-American employees were

spoken to about their smoking breaks, appellant conceded that Caucasian

employees continued to take more than the entitled number of breaks,

albeit not as many more as before. The AJ was not persuaded that the

Caucasian employees were subjected to a double standard; rather, the AJ

concluded that the evidence "merely show[ed] that [appellant and others]

simply did not avail themselves of the opportunity to abuse workplace

standards as compared with [the four African-Americans cited by appellant]

who routinely abused their privileges ... [and] took advantage of [the

Supervisor's] non-confrontational management style ... poor judgement

and ineffectiveness." In this regard, the AJ noted that the Supervisor

had previously been accused of favoring Caucasian employees when those

employees were not confronted or disciplined about their performance

deficiencies. Although appellant alleged that the Supervisor had

dismissed complaints regarding the tardiness of African-Americans

by commenting that it was "a cultural thing," the AJ noted that the

Supervisor did not recall making such a comment. Accordingly, with

respect to allegations (a) through (d), the AJ concluded that appellant

demonstrated only the inability of the Supervisor to adequately and

effectively manage problem employees, regardless of their race.

As for allegation (e), the AJ found that appellant could not establish

a prima facie case of discrimination or reprisal because she failed to

establish that any similarly situated employee was treated more favorably

than she or that there was a causal connection between her EEO activity

and the Supervisor's failure to complete the paperwork necessary for

appellant to receive her award in a timely fashion. Rather, the AJ

determined that the Supervisor's failure to timely process appellant's

paperwork for the award "was only one of the many consequences [of the

Supervisor's] poor organizational and managerial skills." Consequently,

the AJ found no discrimination.

On appeal, appellant advances a number of arguments, including that:

the reports reflecting the difference in the production, phone time

and codes between the Caucasian and African-American employees (whether

smokers and non-smokers) establish that the Supervisor was a racist; the

AJ should not have issued a decision from the bench without the benefit

of reviewing the hearing transcripts; the Supervisor did state that the

lateness of African-Americans could be tolerated as "a cultural thing,"

which is blatant racism; and, noting that the Supervisor presumably

received at least satisfactory ratings in her prior positions, queries

how she could have been permitted to manage employees for a lengthy

period of time if she was in fact such a poor manager.

However, after a thorough review of the record, the Commission finds

that the RD adequately set forth the relevant facts and analyzed

the appropriate regulations, policies and laws. In this regard,

the Commission is not persuaded that the AJ's issuance of a decision

from the bench, within a week of the hearing, disadvantaged appellant.

Moreover, the Commission notes that in this matter, a lengthy hearing was

conducted and the AJ was required to weigh and assess the credibility of

a number of witnesses in determining the ultimate question of whether

the Supervisor's actions were influenced by a consideration of race.

The Commission notes that it generally will not disturb the credibility

determination of an AJ. Esquer v. United States Postal Service, EEOC

Request No. 05960096 (September 6, 1996); Willis v. Department of the

Treasury, EEOC Request No. 05900589 (July 26, 1990). Accordingly, the

Commission discerns no basis to disturb the AJ's finding that appellant

failed to establish discrimination or reprisal. Therefore, it is the

decision of the Commission to AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

April 16, 1999

________________ ___________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 Two of appellant's coworkers also filed complaints alleging that

they too were subjected to discrimination on the basis of race with

respect to allegations (a), (b), (c) and (d). The three complaints were

consolidated for hearing purposes. Only one of the coworkers filed an

appeal from the FAD. See Dunlap v. Department of the Treasury, EEOC

Appeal No. 01983369 (_________, 1999).