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).