03a10036hernandez
02-28-2001
Grace P. Hernandez, Petitioner, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Grace P. Hernandez v. Department of the Treasury
03A10036
February 28, 2001
.
Grace P. Hernandez,
Petitioner,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Petition No. 03A10036
Agency No. DE-0432-99-023-I-2
DECISION
Petitioner timely filed a petition with the Commission on December 19,
2000, for review of a decision of the Merit Systems Protection Board
(MSPB), concerning allegations of discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq.<1> Petitioner alleged that she was discriminated against
based on national origin (Hispanic) and retaliation (prior EEO activity),
when she was removed from her position for unacceptable performance.
The MSPB found that the Department of the Treasury (agency) did not engage
in discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the decision of the MSPB.
BACKGROUND
The record reveals that during the relevant time, petitioner
was employed as a Revenue Officer, GS-1169-11, at the agency's
Internal Revenue Service, Southwest District, Collections Division,
Tucson, Arizona. Petitioner was removed effective March 26, 1999, for
unacceptable performance. Believing she was a victim of discrimination,
petitioner filed a mixed case appeal to the MSPB on April 24, 1999.
After holding a hearing, the MSPB administrative judge (AJ) denied the
appeal. Petitioner did not appeal the AJ's decision to the full MSPB.
The initial decision accordingly became a final decision of the MSPB.
Petitioner than filed her petition with the Commission.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In October 1990, Supervisor A became the Group Manager over the
Collections Division, and, thus, petitioner's immediate supervisor.
In 1993, petitioner filed a sexual harassment complaint, with seven other
females, against Supervisor A. Based on a March 31, 1994, settlement
of the complaint, petitioner was transferred to another group, and
eventually came under the supervision of Supervisor B. Petitioner did
not work for Supervisor A again and worked for Supervisor B until she
was removed for unacceptable performance.
On June 20, 1997, Supervisor B issued petitioner her annual performance
rating covering the period from June 1, 1996, to May 31, 1997.
Supervisor B rated petitioner's performance as unacceptable in three
critical elements of her position: (1) investigation and analysis, (2)
case decisions, and (3) time and workload management. In a memorandum
dated August 25, 1997, Supervisor B issued petitioner an �Opportunity
to Improve� letter and an action plan. In the memorandum, Supervisor
B informed petitioner that her performance was unacceptable in 43
separate taxpayer cases. The action plan identified the ways in which
the agency would assist petitioner in improving her performance during
the opportunity period. Petitioner's opportunity period was originally
supposed to end on November 25, 1997, but was extended through January
30, 1998, by Supervisor B, who also issued an extended action plan.
On June 8, 1998, Supervisor B's second-level supervisor, the Proposing
Official, issued a notice of proposed removal to petitioner. However,
the notice of proposed removal was prepared by Supervisor B. In the
notice of proposed removal, petitioner was charged with unacceptable
performance in two critical elements of her position: (1) investigation
and analysis and (2) case decisions. The notice identified 109 taxpayer
cases in which petitioner's performance was deficient in either or both
of the above critical elements.
On November 20, 1998, petitioner, through her union representative,
made an oral reply to the notice of proposed removal. On March
25, 1999, another official, the Removing Official, on behalf of the
District Director, issued a decision sustaining the proposed removal.
Petitioner was removed on March 26, 1999.
The AJ found that the agency demonstrated by substantial evidence
unacceptable performance in the first critical element of the
petitioner's position, i.e., investigation and analysis. The AJ
thus noted that the proposing and deciding officials relied upon
numerous instances of unacceptable performance by petitioner, involving
the investigation and analysis critical element. The AJ found that,
concerning each specification of unacceptable performance, Supervisor
B gave detailed testimony as to specifically how the petitioner's
performance was deficient. Most significantly, the AJ found Supervisor
B's testimony �to have been highly articulate and consistent.� AJ
Decision at 11. The AJ concluded that �Supervisor B's review of the
petitioner's performance as reflected in the taxpayer files was thorough,
meticulous, and painstaking.� Id. The AJ thus found Supervisor B as
a witness to be �quite credible.� Id.
The AJ recognized that petitioner testified at great length about each of
the specifications of unacceptable performance set out in the notice of
proposed removal. Nevertheless, the AJ found that petitioner's testimony
�was, throughout, hesitant, uncertain, and equivocal.� Id. The AJ found
petitioner's �credibility to be severely damaged by her demeanor on the
witness stand.� Id.
The AJ further found that Supervisor B's review of petitioner's
performance was not biased by retaliatory animus against her for filing
her own sexual harassment complaint or for supporting the discrimination
complaints filed by others. The AJ found that petitioner failed to
establish a prima facie case of reprisal, insofar as she failed to show
any causal connection between her protected activity and the removal
action. The AJ found that beyond petitioner's opinion testimony,
petitioner did not present any evidence, direct or indirect, which
would corroborate her claim of reprisal. The AJ especially noted that
petitioner did not call any witnesses to testify, concerning her claims
of reprisal. Finally, even assuming arguendo that the named officials
possessed a retaliatory motive against petitioner, the AJ found that such
motive was overwhelmed by the legitimate reason identified by the agency
for removing her, i.e., as discussed above, �her continuing unacceptable
performance and the overwhelming evidence of record supporting the
agency's action.� Id. at 15.
In her petition, petitioner presents materials related to her appeal to
the MSPB dated April 24, 1999. However, petitioner does not specifically
address the findings and analysis of the AJ. The agency did not file
a reply.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the MSPB, with
respect to the allegations of discrimination based on national origin
and retaliation, constitutes a correct interpretation of applicable law,
rule, regulation or policy directive and is supported by evidence in
the record as a whole. 29 C.F.R. � 1614.305(c).
National Origin Discrimination
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A petitioner must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the petitioner to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Petitioner may establish a prima facie case of discrimination by showing
that she is a member of a protected group and that she was treated less
favorably than other similarly situated employees outside her protected
group. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,
865 (6th Cir. 1975). Petitioner may also set forth evidence of acts
from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco, 438 U.S. at 576.
The 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
petitioner has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
The agency articulated a legitimate, nondiscriminatory reason for the
action at issue, i.e., the removal was based on petitioner's unacceptable
performance. Petitioner has not shown pretext.
As the AJ noted, the proposing and deciding officials relied upon numerous
instances of unacceptable performance by petitioner in the investigation
and analysis critical element. More specifically, the deficiencies
were delineated in three sub-elements of the critical element, namely,
1B (Records, Third-Party, and 100% Penalty Information), 1C (Financial
Information), and 1E (Ability to Pay) as reflected in 109 separate
taxpayer cases. Supervisor B testified at great length as to the
petitioner's unacceptable performance in sub-elements 1B, 1C, and 1E of
the critical element. Supervisor B, the author of the notice of proposed
removal, additionally testified that he based the numerous specifications
of unacceptable performance identified in that document on his careful,
thorough, and lengthy review of the pertinent taxpayer files in the light
of the petitioner's performance standards. Concerning each specification
of unacceptable performance, Supervisor B gave detailed testimony as to
specifically how the petitioner's performance was deficient.
The AJ found Supervisor B as a witness to be �quite credible.� AJ
Decision at 11. Although the AJ recognized that petitioner testified at
great length about each of the specifications of unacceptable performance
set out in the notice of proposed removal, the AJ found petitioner's
credibility to be severely damaged by her demeanor on the witness stand,
emphasizing that petitioner's testimony was hesitant, uncertain, and
equivocal.
The credibility determinations of an AJ are entitled to deference due
to the judge's first-hand knowledge through personal observation of the
demeanor and conduct of the witness at the hearing, and the Commission
will generally not disturb the credibility determination of an AJ.
See Esquer v. United States Postal Service, EEOC Reqeust No. 05960096
(September 6, 1996). Petitioner has not submitted any evidence or
argument suggesting in any way why the Commission should not give
deference to the AJ's credibility determination in favor of Supervisor
B and against petitioner.
Additionally, we note that the AJ found that the petitioner's testimony
represented her subjective disagreements with Supervisor B's conclusions
and testimony concerning her unacceptable performance. The AJ also
noted that petitioner called no witnesses to testify, concerning the
specifications of unacceptable performance.
Finally, we recognize that the AJ found that the performance deficiencies
identified by Supervisor B in the notice of proposed removal and in his
testimony were fully consistent with the documentation, or lack thereof
in many instances, in the taxpayer file. Indeed, the AJ reviewed the
taxpayer files presented by the agency in support of the specifications
of unacceptable performance. AJ Decision at 10-11.
Petitioner has not delineated specifically her disagreement with the
AJ's findings and analysis. We discern no basis to disturb the AJ's
finding of no discrimination, which was based on a detailed assessment
of the record and the credibility of witnesses.
Retaliation
To establish a prima facie case of reprisal discrimination, petitioner
must show that (1) she engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) she was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link. The causal connection may be shown by evidence that the
adverse action followed the protected activity within such a period of
time and in such a manner that a retaliatory motive is inferred. Simens
v. Department of Justice, EEOC Request No. 05950113 (March 28, 1996)
(citations omitted). "Generally, the Commission has held that nexus may
be established if events occurred within one year of each other." Patton
v. Department of the Navy, EEOC Request No. 05950124 (June 27, 1996).
In general, claims alleging retaliation discrimination are examined
under the tripartite analysis first enunciated in McDonnell Douglas,
discussed, supra. Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases).
With respect to the reprisal allegation, petitioner claimed that her
removal was based on retaliation against her for filing a complaint
of sexual harassment against Supervisor A and for testifying for other
employees in their discrimination complaints. The AJ found, however,
that petitioner failed
to establish a prima facie case of retaliation, insofar as she failed
to show any causal connection between her protected activity and the
removal action.
In 1997, when petitioner's removal was initiated, Supervisor A had not
been in petitioner's chain of command for well over three years, and
there is not a scintilla of evidence in the record that he influenced
any of the actions of Supervisor B, the Proposing Official, or Deciding
Official. Supervisor B and the Deciding Official expressly denied
retaliating against the petitioner. The Proposing Official was not
a witness. The AJ found that petitioner did not present any evidence,
direct or indirect, which would corroborate her claim of retaliation.
Even assuming arguendo that petitioner has set forth a prima facie case,
the Commission concurs in the finding that the agency has articulated a
legitimate, nondiscriminatory reason for the action at issue, i.e., the
removal was based on petitioner's unacceptable performance. Petitioner
has failed to show the agency's articulated nondiscriminatory reason to
be pretext.
Petitioner has not delineated specifically her disagreement with the
AJ's findings and analysis. We discern no basis to disturb the AJ's
finding of no retaliation.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB, finding no discrimination. The Commission finds that the
Board's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within thirty
(30) calendar days of 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.
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
February 28, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.