0120073276
09-26-2007
Kathy D. Henderson, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Kathy D. Henderson,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120073276
Hearing No. 410-2007-00064X
Agency No. 06-2206
DECISION
Complainant filed an appeal with this Commission from the June 15, 2007
agency decision which implemented the May 30, 2007 decision of the EEOC
Administrative Judge (AJ) finding no discrimination.
Complainant filed an EEO complaint alleging that the agency discriminated
against her on the bases of race (Black) and in reprisal for prior
protected EEO activity when:
1. On November 30, 2005, complainant's Manager issued complainant
an admonishment letter for forwarding a chain letter by electronic mail
on July 20, 2005.
2. On November 30, 2005, complainant's Manager and the Director
called her an idiot and a liar.
3. On January 4, 2006, complainant's telecommuting privilege was
suspended.
4. On February 3, 2005, and continuously, complainant's requests
for transfer from the Wage and Investment group were denied.
5. On March 31, 2006, complainant's Manager failed to revisit
complainant's telecommuting suspension as promised.
6. On April 25, 2006, complainant received an unfair and negative
mid-year evaluation.
7. Effective April 26, 2006, complainant was reassigned to work
under another Manager.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation. Complainant requested a hearing
before an AJ. Following the hearing, the AJ issued her decision.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (December 6, 1996).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
generally establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Although the initial inquiry
in a discrimination case usually focuses on whether complainant has
established a prima facie case, the prima facie inquiry may be dispensed
with when the agency has articulated a legitimate, nondiscriminatory
reason for its actions. In such cases, the inquiry shifts from whether
complainant has established a prima facie case and proceeds to the
ultimate issue of whether complainant has shown by a preponderance of
the evidence that the agency's actions were motivated by discrimination.
See United States 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).
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Upon review of the record, including consideration of all statements
submitted on appeal, it is the decision of the Commission to affirm the
agency decision. In her decision, the AJ addressed each of complainant's
claims individually, the agency's articulated reasons for its actions,
and complainant's assertions of pretext, and made appropriate findings
and conclusions regarding each claim. The AJ found no discriminatory
reason for the admonishment in claim 1. The AJ found that the
Manager apologized for calling complainant an idiot during a heated
discussion (claim 2). The AJ found that the telecommuting privilege
for complainant was suspended because she was not coming to work in the
office when required under the program (claim 3). The AJ found that
complainant did not meet the necessary prerequisites for a transfer in
claim 4. Regarding claim 5, the AJ found that the Manager reinstated
complainant's telecommuting privileges the week of April 12, 2006.
Regarding the negative evaluations, the AJ found that complainant had
performance problems performing audits. The AJ found that complainant
was reassigned in claim 7, along with others, in order to balance out
the teams and program areas.
The AJ's ultimate finding that unlawful employment discrimination was not
proven by a preponderance of the evidence is supported by the substantial
evidence of record. Complainant points to testimony as proof that a
discriminatory animus existed. A review of the hearing transcript,
and the record as a whole, does not establish that the agency was
motivated by a discriminatory intent. At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated
by intentional discrimination. Complainant failed to carry this burden.
The agency's decision finding 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
September 26, 2007
__________________
Date
2
0120073276
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036