01A22613
07-11-2003
Janis L. Richardson, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission Agency.
Janis L. Richardson v. Equal Employment Opportunity Commission
01A22613
July 11, 2003
.
Janis L. Richardson,
Complainant,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission<1>
Agency.
Appeal No. 01A22613
Agency No. 0-0000018-PX
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 order.
Background
The record reveals that complainant, an Investigator, filed a formal
EEO complaint, alleging that the agency had discriminated against her on
the bases of race (African-American), sex (female), age (D.O.B. June 10,
1949), and reprisal for prior EEO activity when:
(1) on October 29, 1999, she was issued an �Unacceptable� performance
rating by her supervisor (RMO 1: Hispanic, female, DOB: unknown);
on November 3, 1999, she was placed on a Performance Improvement Plan
(PIP); and,
she was subjected to different terms and conditions of employment with
respect to training and performance standards.
Complainant was promoted to the position of Investigator Trainee effective
January 3, 1999, under the supervision of the Enforcement Supervisor,
and subsequently Enforcement Manager (RMO 2: White, male, age unknown).
Complainant was promoted to the position of Investigator effective April
3, 1999, under the supervision of RMO 1. At the end of Fiscal Year 1999,
complainant received an �Unacceptable� performance evaluation from RMO 1,
based on her performance from the date of her promotion to Investigator
to the end of the fiscal year. Due to the performance evaluation she was
placed on a PIP. Complainant contacted an EEO Counselor and subsequently
filed a formal complaint, as discussed above. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an Administrative Judge (AJ)<2>.
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination. Specifically, the AJ found that complainant
failed to demonstrate that she was treated differently than similarly
situated employees not in her protected classes. The AJ noted that the
comparators cited by complainant had both less experience and better work
results than complainant, and hence were not similarly situated with her.
Regarding the PIP, the AJ found that such plans were mandatory following
the receipt of an unacceptable rating, and that the PIP was therefore
not a separate adverse action but was merely part-and-parcel of the
unacceptable rating.
Regarding complainant's claim that she was subjected to different terms
and conditions of employment, the AJ found that the evidence showed
that contrary to her assertion, she was not the only employee who was
required to develop a training program. The AJ further found that she
was not similarly situated with the three comparators she identified
who received �Acceptable� ratings, because two of these comparators
worked for a different work team, with different production goals,
while the third had worked in collaboration with another Investigator
while complainant had worked alone. In addition, the AJ found that
one comparator had not been issued easier �ready to write� cases, as
complainant claimed. Regarding her claim of reprisal discrimination,
the AJ found that complainant failed to establish a nexus between her
prior EEO activity and the incidents complained of because there was
no evidence RMO 1 was aware of such activity. Indeed, the AJ noted
that RMO 2 purposefully assigned complainant a supervisor who had no
knowledge of complainant's prior EEO activity.
The AJ further found that, assuming arguendo that complainant
established a prima facie case, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ
found that complainant received an unsatisfactory performance rating
because she had performance difficulties, including the fact that she
did not complete any �cause cases� even though she had three ready to
submit, and she also had difficulty analyzing and investigating cases.
The agency's final order implemented the AJ's decision. From this final
order, complainant appeals.
On appeal, complainant says that the AJ's decision is not supported by
the evidence. Complainant maintains that, while one of the comparators,
(CW 1: Hispanic, male, DOB: unknown) began working for the agency a few
weeks after complainant, he is, in all substantive respects, similarly
situated with her. Complainant further argues that the comparator
identified by the AJ as also being required to develop a training program
(CW 2: Caucasian, male, DOB: unknown) was not similarly situated with her.
Complainant next argues that the agency provided no evidence to support
its contention that complainant had performance difficulties during
the applicable period, and further, that the AJ ignored evidence that
showed complainant had been praised for her performance. Complainant
also maintains that she was never notified that she wasn't meeting
expectations prior to receiving her performance evaluation, nor was she
notified exactly what was expected of her in order to avoid a performance
rating of �unsatisfactory.� Complainant next argues that RMO 1 lacked
credibility because she testified that complainant did not complete three
cases from a specific case file that were ready to be written by July 26,
1999, when in fact, according to complainant, the evidence showed that
one of the charges for the file in question was not filed until July
26, 1999, and as such the case could not have been ready to write by
that date. In addition, complainant points to alleged inconsistencies
in RMO 1's testimony concerning when she became aware of complainant's
performance difficulties.
Complainant further argues that the AJ's finding that RMO 1 was a credible
witness was unsupported and unfounded. In addition, she maintains that
the AJ acted in a biased, unprofessional, and improper manner when
the AJ concluded that complainant's handling of her own case during
the hearing �gave a vivid picture of the very difficulties that the
agency complained about,� AJ's Decision, p. 3, concerning complainant's
ability to organize complex issues and distinguish between evidence and
conclusory allegations. In response, the agency restates the position
it took in its FAD, and requests that we affirm its final order.
Analysis and Findings
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We take this
opportunity, however, to clarify the AJ's decision. Regarding issue 3,
we note that complainant's claim that she was subjected to �different
terms and conditions of employment with respect to performance standards�
relates to her performance appraisal and as such is addressed under issue
1. Her allegation concerning training amounts to an allegation that she
was the only employee required to develop an Individual Development Plan
for her new position, while other employees had such a plan developed for
them by the Enforcement Supervisor. The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). Given complainant's
allegation, we find that complainant is not an aggrieved employee based
on the allegations contained in issue 3.
Regarding complainant's argument that CW 1 was in all material aspects
similarly situated with her, we note that such an argument addresses
the issue of whether or not complainant established a prima facie case
of discrimination. However, since the AJ found that the agency had
articulated a legitimate, nondiscriminatory reason for its actions,
the prima facie inquiry may be dispensed with. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
Regarding complainant's argument that the agency provided no evidence to
support its contention that she had performance difficulties during her
first nine months, we note that, on the contrary, the agency has submitted
data showing the performance of all the Investigators under RMO 1 for the
applicable period, including complainant, see Report of Investigation
(ROI) Exhibit B-1 pp. 46 & 54, Exhibit B-2, p. 119, and Exhibits B-5 &
B-6, as well as data showing the performance of complainant in comparison
with the performance of two other similarly situated Investigators over
a similar time period following their promotions to their new positions.
Hearing Transcript (HT), pp. 25-45, Exhibit 3. We further note that
complainant has not denied that she had performance difficulties, but
instead argues that her difficulties stemmed from factors that were
beyond her control. Complainant maintains that �evidence show[ed]�
that a specific set of three cases could not have been completed by July
26, 1999, because not all the documentation had been received from the
parties involved by that date. Complainant, however, has not identified
such evidence.
Finally, the AJ's conclusion that complainant had performance difficulties
was based in part on the testimony of RMO 1, whom the AJ found to be
particularly credible due to the fact that RMO 1 was no longer with the
agency and therefore had no reason to testify untruthfully. We note
that an AJ's credibility determinations are entitled to deference.
Universal Camera, 340 U.S. at 477; Grant v. Department of the Treasury,
EEOC Appeal No. 01985972 (August 2, 2001). We therefore discern no
basis to disturb the AJ's decision in this regard. While complainant
on appeal contends that RMO 1 lacked credibility for maintaining that
the three aforementioned cases should have been completed by July 26,
1999, as noted above, complainant has not identified such evidence.
Furthermore, a review of RMO 1's testimony does not reveal any other
material inconsistency.
Regarding complainant's claim of bias and unprofessional behavior on
the part of the AJ, following a review of the hearing transcript and
the AJ's decision, we find no evidence of bias by the AJ.
We note that complainant failed to present evidence that any of
the agency's actions were in retaliation for complainant's prior
EEO activity or were motivated by discriminatory animus toward
complainant's race, sex, or age. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
July 11, 2003
__________________
Date
1In the instant matter, the Equal Employment
Opportunity Commission is both the respondent agency and the adjudicatory
authority. The Commission's adjudicatory function is separate and
independent from those offices charged with the in-house processing
and resolution of discrimination complaints. For the purpose of this
decision, the term "Commission" or �EEOC" is used when referring to the
adjudicatory authority and the term "agency" is used when referring to
the respondent party in this action. The Chair has recused herself from
participation in this decision.
2The adjudicative function was contracted out to an independent attorney
who conducted the hearing and issued a Decision.