0120103118
09-26-2012
Lisa Williams, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Lisa Williams,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120103118
Hearing No. 560-2008-00178X
Agency No. IRS-06-0624-F
DECISION
On July 30, 2010, Complainant filed an appeal from the Agency's May 12, 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, as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Tax Examining Team Leader in Overland Park, Kansas. On March 15, 2006, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against and harassed her on the bases of race (African-American), sex (female), and in reprisal (for prior EEO activity) when:
1. On November 7, 2005, Complainant was reassigned from her managerial position and sent for training.
2. On December 15, 2005, Complainant received a reprimand.
3. On January 23, 2006, management prepared a Readiness Report which was sent to Complainant's peers in an un-sanitized format which divulged information about Complainant.
4. In January 2006, an employee who engaged in an altercation with Complainant was allowed to return to the same work area as Complainant.
5. On February 7, 2006, Complainant received performance feedback she did not deem an accurate assessment of her work.
6. On February 27, 2006, Complainant received a Management Potential Evaluation which Complainant asserts is not an accurate assessment of her potential.
7. On March 5, 2006, Complainant was reassigned. [Complainant claims she did not manage a team from October 2005 through March 4, 2006.]
8. On May 1, 2006, Complainant submitted a Career Learning Plan to her manager; thereafter, on June 26, 2006 through July 8, 2006, management overlooked Complainant's developmental opportunities and did not consider her for a detail as the night shift Customer Service Representative Manager.
9. On October 30, 2006, management did not consider Complainant for a temporary promotion to the position of Supervisory Customer Service Representative.
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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency determined that Complainant failed to prove that it subjected her to discrimination as alleged. Final Agency Decision at 16. With regard to claim (1), the Agency stated that on November 7, 2005, Complainant was removed from her position as Manager of Team 505 and sent to adjustment training for twelve weeks. Id. at 2. Subsequently, Complainant was detailed to be the Manager of Team 102. Id.
As for claim (2), Complainant was issued a reprimand on December 15, 2005, for failure to satisfy the balance of the Government travel credit card prior to the due date of May 6, 2005. Id. at 3. Complainant violated her government credit card agreement by failing to pay the balance due of $1,100 within 25 calendar days from the closing date of the statement. Id. The Credit Card Misuse Penalty Guide recommends a penalty of a written reprimand to a five day suspension for a first offense. Id. at 3-4.
With regard to claim (3), the Department Manager of the Business Operation Division prepared a Readiness Report which was sent to Complainant's peers. Id. at 4. The Agency noted that the report stated that Complainant's position needed to be addressed as her grade level was too high for the unit. Id. According to Complainant, although her name was not mentioned in the report, both the Department Manager and the Operations Manager told her the information should have been sanitized. Id.
In terms of claim (4), Complainant claimed that a female employee with whom she had an altercation was permitted to return to their same work area. Id. The Department Manager stated that he decided to allow the employee to return to the building where Complainant worked because the employee had been sent to a building which lacked a manager that the employee could be placed under. Id. According to the Department Manager, the employee was monitored upon her return by her manager and himself. Id.
With respect to claim (5), Complainant stated that she received performance feedback which she did not consider an accurate assessment of her work. Id. at 5. The Agency noted that Complainant argued that the feedback was provided during a period when she did not manage her unit and that the White male employee who was managing the unit did not receive feedback. Id. The Department Manager stated that the feedback was not disciplinary or adverse in nature. Id. He stated that the feedback was guidance to Complainant and that each employee's feedback was based on their individual performance. Id.
With regard to claim (6), Complainant stated that she received a Management Potential Evaluation that is not an accurate assessment of her potential. Id. The Department Manager who issued the assessment stated that it was not inaccurate as Complainant was frequently late with completed staff work and had human relations issues with her staff. Id. Complainant claimed that during a team building session moderated by the Department Manager, her staff was permitted to curse and yell at her. Id. According to the Department Manager, many of Complainant's employees did not get along with her and were emotional at times during the meetings, but that he did not permit anyone to abuse Complainant during the team building sessions. Id.
As for claim (7), Complainant stated that she was reassigned on March 5, 2006, and did not manage a team from October 2005 to March 4, 2006. Id. The Operations Manager stated that Complainant was in adjustment training during the October 2005 to March 4, 2006 time period. Id. Upon completion of the Adjustment training, Complainant received a temporary promotion to a GS-11 and was detailed as Manager of Team 102. Id.
With respect to claim (8), Complainant stated that the Department Manager overlooked development opportunities for her despite her submission of a career learning plan. Id. at 6. Complainant further claimed that a White male received the supervisory CSR detail and not her despite the fact that she has been a permanent manager in Accounts Management for five years and possessed more managerial experience than the selectee. Id. The Department Manager stated that he discussed with Complainant her potential for development and made recommendations to her. Id. at 12. With regard to Complainant not being considered for a temporary promotion on a Customer Service Representative detail, the Acting Department Manager stated that someone with a technical background was needed and that the selectee already had experience as a Customer Service Representative Lead. Id.
In terms of claim (9), Complainant claimed that she was not considered for a temporary promotion to the position of Supervisory Customer Service Representative even though she had been a manager for seven years and had completed the Leadership Development Program. Id. According to Complainant, upon learning that a White employee had been selected for the position, she filed an EEO complaint and was subsequently offered the position after the White selectee was removed from the position. Id. The Department Manager responded that although Complainant had more managerial experience than the selectee, she did not have as much experience as the selectee with the work performed by the unit. Id. at 13. He stated that the selectee had experience as a phone trained CSR and Lead that complainant lacked. Id. The Department Manager further stated that Complainant was awarded the temporary promotion after the selectee requested to return to his former position. Id.
The Agency rejected Complainant's claim of harassment. Id. at 16. The Agency determined that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to establish that the actions complained of were based on her protected EEO activity, race, or sex. Id. at 13. The Agency relied on its aforementioned reasons for each of the alleged actions in denying Complainant's harassment claim. The Agency determined that neither individually nor collectively do the matters at issue constitute a hostile work environment. Id. at 16.
On appeal, Complainant contends that although the Operations Manager stated that she had no knowledge of her prior EEO activity, she has an affidavit signed by the Operations Manager for her prior complaint. Complainant maintains that at the time she was targeted, a majority of the minority managers were on opportunity letters. Complainant argues that there was unfair treatment of African-American employees in Accounts Management. With regard to claim (2), Complainant states that her supervisor contributed to her credit card bill not being paid in a timely manner. Complainant states that he did not sign her advance request for almost 30 days and thus she did not receive the funds to pay her debt. Further, Complainant argues that the reprimand was not consistent with what other managers did. With respect to claim (9), Complainant maintains that she was more qualified than the selectee for the temporary promotion to the position of Supervisory Customer Service Representative. Complainant states that she had successfully completed training and had three CSRs on her team who she was managing on a regular basis. As for claim (3), Complainant maintains that two Agency officials often spoke to her in a condescending tone and that one referred to her as a drama queen, which she interpreted as a term to describe Black women. Complainant argues that the Department Manager of the Business Divisions Operation forwarded a site review to her managers that contained negative information that had been alleged about her and her team. According to Complainant, the Department Manager and the Operations Manager both said the information never should have been forwarded.
With respect to claims (1) and (7), Complainant contends that it is untrue that training was the reason she was not managing a team. Complainant maintains that she sat in a corner for approximately three months close to the Department Manager so that he could harass her when he wanted and give her additional tasks. Complainant states that it was embarrassing for her to be the only manager sitting in the employees' work area. With respect to claim (4), Complainant states that she felt very uncomfortable and that it was wrong to allow the employee who assaulted her and had been terminated to have access to the building after she was terminated.
ANALYSIS AND FINDINGS
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 initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the Complainant's statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's 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 (Mar. 8, 1994).
We shall assume arguendo that Complainant established a prima facie case of discrimination under each of the alleged bases. As for claim (1), the Operations Manager stated that Complainant was provided the developmental opportunity of adjustment training to remove her from the hostile working environment she allegedly created for her staff in the Refund Unit. Additionally, the training was intended to provide Complainant with leadership skills that would afford her a better opportunity to receive a promotion. This constitutes legitimate, nondiscriminatory reasons for Complainant's reassignment from her team to training. Complainant claimed that the prior Operations Manager informed her that the Refund Unit had improved since she left because the replacement, as a White male, comes from a different background. We note that the prior Operations Manager retired and the EEO Investigator stated that the Agency had no contact information for her. Upon review of all the circumstances concerning this reassignment, we find that Complainant has not established that any of the alleged bases were factors when the decision was made to temporarily remove her from her position and offer her training. Complainant's difficulties with the unit members under her supervision and the Agency's belief that Complainant needed to improve her leadership skills appear to be the motivating factors underlying the Agency's decision.
Complainant's detail occurred after her completion of adjustment training. The former Operations Manager requested that Complainant be temporarily promoted to Manager of Team 102. As for Complainant not managing a team from October 2005 through March 4, 2006, the record indicates that the Agency believed Complainant needed to obtain further training and leadership skills in order to afford her opportunities for promotion. We find that Complainant has not presented persuasive evidence to establish that the actions at issue were attributable to discriminatory intent.
With regard to claim (2), the Agency explained that the reprimand was issued pursuant to the Credit Card Misuse Penalty Guide. The Agency stated that a first offense carries a recommendation of a written reprimand to a five day suspension. Although Complainant contends that other managers did not apply this penalty, she has not refuted the Operation Manager's statement that she issued the same penalty to a White female and a Black female. We find that Complainant has not established pretext with regard to the issuance of the reprimand.
In terms of claim (3), the matter involved the issuance of a report on all aspects of the operation and not just the unit that Complainant previously managed. Complainant's position was cited as being at too high a grade level, but Complainant was not specifically mentioned. Agency officials nevertheless recognized that the report should have been sanitized. Although the Department Manager who issued the report was cited by Complainant as being disparaging of her, we find there is insufficient evidence to support a finding of discrimination.
With respect to claim (4), the Agency explained that the employee involved in the altercation with Complainant could not be sent to another building due to lack of an available manager. The Department Manager stated that both he and the Operations Manager monitored the employee, and no incident occurred. Complainant has not shown that the Agency's actions were unlawful.
With regard to claim (5), the Department Manager stated that the performance feedback was intended as guidance to Complainant on issues identified in the midyear and annual feedback, and was not adverse in nature. Complainant stated that she received feedback when she was not managing employees and her replacement did not receive feedback. As to claim (6), the Agency asserted that the Management Potential Evaluation reflected Complainant's difficulties with late staff work and personality conflicts with her staff. Complainant argued that prior to 2005, Black females in Accounts Management were usually rated the lowest or on opportunity letters. We find that these arguments are not sufficient to establish pretext with regard to claims (5) and (6).
As for claim (8), the Department Manager stated that he discussed Complainant's potential for development and made recommendations to her. The official who made the selection for the nightshift detail stated that someone with technical background was needed and the selectee already possessed experience as a CSR Lead. Complainant maintains that the Department Manager did not discuss her career learning plan with her. Complainant contends that discrimination is evident by virtue of the fact that a White employee received the detail. We find that Complainant has not established that the Agency's nonselection of her for the detail or treatment of her otherwise with regard to career development during the relevant time period was discriminatory.
With regard to claim (9), the Agency stated that Complainant was not selected for the position of Customer Service Representative due to the fact that the selectee had more experience with the work performed in the unit. Complainant challenged this explanation by referencing her seven years as a manager, her experience managing three Customer Service Representatives and the fact she was offered the position after she filed an EEO complaint. Although it is clear that Complainant's credentials merited consideration, she did not establish in light of the selectee's skill set for the unit that her nonselection was attributable to discriminatory intent.
With respect to Complainant's claim of a hostile work environment, we do not consider the reassignment, nonselections, feedback and Management Potential Evaluation to be indicative of harassment. Although the readiness report referencing Complainant's grade and the presence of the employee involved in an altercation with Complainant suggest questionable judgment on the part of certain officials, we do not find in consideration of all the circumstances that these actions created a hostile work environment. As previously explained, there was clear justification for issuing Complainant a reprimand for the credit card debt. Complainant raised concerns about her staff speaking against her in vehement terms during team building sessions and she also claimed that for three months when she was not managing employees, she was required to sit among the employees and near her Department Manager. We recognize that these situations were embarrassing for Complainant. However, in consideration of these incidents, separately and cumulatively with the other matters discussed above, we find that they were not sufficiently severe or pervasive to constitute a hostile work environment, nor were they attributable to discriminatory intent.
CONCLUSION
The Agency's determination of no discrimination in its final decision is AFFIRMED.
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
September 26, 2012
__________________
Date
2
0120103118
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103118