0120073026
11-13-2007
Elinor B. Pope, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Elinor B. Pope,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120073026
Agency No. DFS-06-0220-F
Hearing No. 450-2007-00080X
DECISION
Complainant timely initiated an appeal from the agency's final order concerning her equal employment opportunity (EEO) complaint claiming 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 and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
During the period at issue, complainant was employed as a Taxpayer Law Specialist, GS-526-09, at the agency's Wage and Investment, Accounts Management in Dallas, Texas.
On July 18, 2006, complainant filed an EEO complaint alleging that she was discriminated against on the bases of disability (Type II diabetes) and in reprisal for prior EEO activity when:
1. on January 16, 2006 and ongoing, she was denied the opportunity to work an Alternative Work Schedule;
2. on January 6, 2006 and ongoing, she was denied the opportunity to work overtime; and
3. on April 18, 2006, she received a performance appraisal that was lower than appropriate based on her performance.
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). Complainant requested a hearing. The AJ held a hearing on April 2, 2007, and issued a decision on April 23, 2007.
In her decision, the AJ found no discrimination concerning claims 1 - 3. The AJ found that complainant failed to establish a prima facie case of disability discrimination.1
The AJ further found that complainant failed to establish a prima facie case of harassment based on disability and prior protected activity. Specifically, the AJ found that the conduct alleged to constitute harassment to the point of creating a hostile work environment was not shown to be severe or pervasive enough to support such a finding. The AJ found that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
On May 9, 2007, the agency issued a final order wherein it implemented the AJ's decision finding no discrimination.
Regarding claim 1, S1 testified that in January 2006, she issued complainant a memorandum notifying her that she was no longer allowed to work an alternate work schedule (AWS) because she was failing in two critical job elements. S1 further testified that she notified complainant that if her performance improved, complainant could be allowed to work an AWS schedule. S1 testified that complainant was not the sole employee who was removed from an AWS schedule; and that S1 also removed another employee from an AWS schedule because of a leave restriction letter, and her leave did not improve.
The record further reflects that S2 stated that while he was aware complainant was removed from an AWS schedule, he had no direct involvement with this action. S2 stated that he received information from the Human Resources Specialist (Specialist) that the national agreement between the union and agency had been amended. Specifically, S2 stated that the amendment allowed management to remove employees who had either contract or performance issues to be removed from an AWS schedule. S2 stated that he then transmitted this information to team leaders, including S1, and told them to address the issue. S2 stated that he later received a list of employees who fell into this category from all team leaders. S2 stated that he received two names, including complainant's name, from S1.
Regarding claim 2, S1 testified that on March 9, 2006, she prepared a memorandum which stated that complainant was not permitted to work overtime because she was failing a critical job element of her performance evaluation. Specifically, S1 testified the critical element that complainant was failing was at the "Job Element 5C" concerning phone monitors.
The record reflects that S2 testified that he was aware of complainant not being allowed to work overtime but had no direct involvement. S2 further stated that during the relevant time, complainant was not qualified to work overtime due to her below fully successful rating per the national agreement.
The record reflects that the Specialist stated that complainant was denied overtime based on her performance. Specifically, the Specialist stated that she and the department managers "...had discussion in terms of those individuals that were working overtime. That if . . . they didn't meet the qualifications for overtime, meaning that they were either skilled or performing at a satisfactory level, then they would not be allowed to work overtime."
Regarding claim 3, S1 stated that complainant's annual performance rating had been lowered by her former manager, and that she was responsible "for preparing her subsequent mid-year and annual appraisals." S1 stated "I used monitoring for four months from the previous manager and eight months from my observation" and rated complainant's performance as "minimally successful." Specifically, S1 stated that complainant "had a Departure Rating of Unacceptable, prepared by her previous manager, when she was assigned to me Team in August of 2005." S1 further stated that she did not lower complainant's appraisal rating, and that the rating was lowered by her previous manager. S1 testified "And I also considered memos that I gave to her regarding tardiness, late breaks, perhaps idle time when she should be on the telephones but she wasn't. The whole thing on how she interacted with people, with her team, with other people." Furthermore, S1 stated that while she was aware of complainant's diabetes and prior protected activity, she did not consider them in the evaluations.
S2 testified that because he was the concurring official, he reviewed complainant's performance rating. S2 further testified that he believed complainant's performance ratings were justified, and signed the rating on April 14, 2006.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its actions. Moreover, complainant has not established that the agency's reasons, as discussed above, were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Applying these principles to the facts in this case, we conclude that the record does not support a determination that the alleged incidents constituted a discriminatory hostile work environment.
The agency's final order implementing the AJ's finding of no discrimination is AFFIRMED.
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
November 13, 2007
__________________
Date
1 For purposes of analysis only, the Commission assumes, without finding, that complainant is an individual with a disability.
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0120073026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120073026