0120090033
01-16-2009
Mabel N. Beecham, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Mabel N. Beecham,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120090033
Agency No. EEODFS070851F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 28, 2008 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. Complainant alleged
that the agency discriminated against her on the bases of race (Black)
and reprisal (prior protected EEO activity) when: (1) on June 4, 2007,
the acting manager (SO) transmitted an email to complainant outlining
work to be performed during her flexi-place assignment from June 4,
2007, through June 7, 2007, that was different from what was stated
during a previous meeting; and (2) on June 28, 2007, the Group Manager
(S1) issued complainant a negative "Morning after Review" memorandum
pertaining to work completed by complainant during her flexi-place
assignment and rescinded complainant's flexi-place privileges.
The record shows that on April 27, 2007, complainant submitted a
written request to her second-line supervisor (S2) asking him for a
reassignment to a different first-line supervisor. In her written
request complainant described an incident that occurred when she
and her first-line supervisor (S1) met on April 26, 2007 to discuss
complainant's performance evaluation. According to complainant, she
mentioned to S1 that she was the only Revenue Officer (RO) to whom S1
had not given a Christmas gift. Complainant wrote that S1 pointed her
finger in her face, said she had given everyone a gift, and demanded
that complainant tell her who had said S1 had not given her a gift.
Complainant also stated that she told S1 that she had been using more
sick leave since being assigned to S1's group.1 Complainant wrote that
S1 jumped up, said she was being accused of making complainant sick, told
her the meeting was over, left the conference room, and closed the door
to her office. When complainant knocked on the closed door to get her
files, S1 yelled through the door that she would bring the files to her.
Complainant further asserted that about 15 minutes later, S1 brought the
files and stated, "Here are your files. I am not throwing them to you
but handing them to you and you have witnesses of that (sic)." On May 3,
2007, S2 responded in a memorandum to complainant that he would not honor
her reassignment request. Instead, S2 stated he would have her report to
a coworker (SO) who would act as her manager, except for leave purposes.
With respect to leave, complainant would still report to S1.
The record supports the finding that after agreeing that complainant could
work from home during the week of June 4, 2007, SO sent complainant an
email which reiterated the expectations of the work to be completed from
home which was previously discussed with complainant. SO affirmed that
she did not believe complainant's explanation of not being able to access
the email because she herself works from home at times and knows that
access problems have to be reported to the Help Desk, and that the Help
Desk representative (C2) reported that complainant had not contacted him.
S2 affirmed that the "Morning after Review" was a follow-up review that
was conducted because S1 had reviewed six of complainant's cases on
April 30, 2007, and found that her work was unacceptable. S2 explained
that the purpose of "Morning after Reviews" is to measure the overall
effectiveness of a Revenue Officer's work over a short period of time.
S2 also explained that managers are expected to bring their employees'
performance to a successful level as soon as possible, and if a manager
determines an employee is performing at an unacceptable level and has not
improved in a subsequent review, the manager should consider temporarily
removing the employee from the flexi-place schedule. In S2's view,
the reviews of complainant's cases performed on April 30 and June 28,
2007 satisfied this requirement.
In addition, S2 conducted an operational review of the group led by S1 on
June 7, 2007. In a report dated June 11, 2007, S2 wrote that, among other
things, he reviewed four cases from each Revenue Officer's inventory to
gauge the employee's performance and compare it to his or her evaluation.
S2 wrote that his review indicated that complainant and C1 were the
Revenue Officers who were in "most need of [S1's] attention." S2 noted
that the prior appraisals of these two employees had to be "revalidated"
because of untimely reviews of their work. S2 explained that revalidation
meant recertifying the previous appraisal given to an employee, even
if their work did not merit the appraisal received. In the report,
S2 wrote that his review of complainant's cases showed that she was
"very ineffective, her investigations lack depth; histories are replete
with excuses and justifications for not taking actions; history entries
omit relevant facts." S2 described complainant's work as "unacceptable."
S2 also described C1's work as ineffective but was less critical of her.2
S2 also denied the assertion that Black subordinates of S1 were
discriminated or retaliated against. Specifically, S2 noted that
two similarly situated ROs within the same protected classes as
complainant had been recognized by S1 for their outstanding performance.
Specifically, S2 noted that SO (Black, prior EEO activity) was often
given the opportunity to mentor other employees, teach training classes,
complete many special assignments, and was selected as Interim Group
Manager to replace S1 when she retired. In addition, another RO (C3)
(Black, prior EEO activity) was granted permission to teach at the
Continuing Professional Education session, even though she had not been
trained as an instructor and she received praise from S1 regarding her
work performance.3
Complainant asserts that, while C1's work performance was equal to hers,
C1 was treated better. We find insufficient evidence in the record to
support this conclusion. However, assuming that the record supports a
finding that complainant was treated less favorably than the other ROs
under S1's supervision, the evidence does not support a finding that
S1's conduct was motivated by racial or retaliatory animus.
It is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 16, 2009
Date
1 Complainant was assigned to S1's group sometime in October 2006.
2 It is unclear from the record whether C1 participated in the flexi-place
program.
3 Moreover, the overwhelming evidence in the record supports the finding
that complainant's work performance was extremely poor and the record
is devoid of evidence (aside from the uncorroborated assertions of
complainant) that S2 or SO held animosity toward complainant.
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0120090033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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