0120102670
11-19-2010
Karin Weng, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Karin Weng,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120102670
Agency No. CRC0911086
DECISION
On June 8, 2010, Complainant filed an appeal from the Agency's May 10, 2010 final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
During the relevant period, Complainant worked as an Employee Benefits Law Specialist at a District of Columbia office of the Agency. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Taiwanese), sex (female), disability (Anxiety/Depression), and reprisal for prior protected EEO activity when her immediate supervisor (S1) issued her a rating of "need to improve" in every element, for a total rating of "minimally satisfactory," for her 2009 mid-year review.1
The Agency accepted Complainant's claim for investigation. During the investigation, S1 made the statement that follows.
The purpose of the mid-year review is to serve as a progress review where employees are orally informed of their current performance before a formal review is conducted at the end of the performance year. . . . Accordingly, except for my e-mail to the file [of April 24, 2009,] there is no document that reflects the feedback provided during the review. Thus, [Complainant] only is complaining about the informal mid-year review and not the rating of record at the end of the performance year.
Further, based upon the feedback given by a supervisor or manager, an employee has an opportunity to improve their work performance for the remainder of the performance year. Because there is no formal rating associated with the mid-year review, there is no potential bonus associated with the mid-year performance review discussion. Accordingly, there are no adverse consequences or detriment to the employee based on the mid-year review.
A supervisor who is not in Complainant's supervisory chain (S2) stated that S1 asked her, with Complainant's consent, to attend Complainant's mid-year performance review on April 24, 2009. S1 stated that she simply observed the April 24 discussion and that S1 did not give Complainant a formal written performance rating but informed her that she had five months to improve her performance to satisfactory. S2 added that S1 informed Complainant of her accomplishments and deficiencies and gave her advice on how to improve her performance. Further, S2 stated that departmental standards require at least one progress review a minimum of 120 days prior to the end of the rating period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant chose the latter. The Agency issued a final decision finding no discrimination. Specifically, the Agency found that Complainant failed to show that the legitimate, nondiscriminatory reasons articulated by the Agency for its actions are pretext. The instant appeal from Complainant followed. On appeal, Complainant stated that she received higher performance ratings prior to her EEO activity and her supervision by S1, the standards applied were subjective rather than objective, and two former female coworkers were subject to discrimination by S1 also.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Here, we agree with the Agency's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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 consideration 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). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
We find that Complainant satisfied the above elements to establish a prima facie case of reprisal discrimination. However, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its action (summarily, to provide verbal feedback to Complainant regarding her performance to give her an opportunity to improve before her written annual performance evaluation), and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives. Based on a thorough review of the record, we AFFIRM the final agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 19, 2010___
Date
1 We note that Complainant stated that the mid-year review was verbal. Subsequently, in November 2009, S1 issued Complainant a Performance Appraisal and Rating of "Meet[s]" in all four elements and an overall rating of "Effective."
Reprisal is the only basis before us.
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0120102670
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102670