Mary J. Hill, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 6, 2001
01991707_r (E.E.O.C. Dec. 6, 2001)

01991707_r

12-06-2001

Mary J. Hill, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Mary J. Hill v. Department of the Treasury

01991707

December 6, 2001

.

Mary J. Hill,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01991707

Agency No. 96-4134

DECISION

Pursuant to 29 C.F.R. �1614.405, the Commission accepts the complainant's

appeal from the agency's final order in the above-entitled matter.

Complainant, a File Clerk, GS-305-4, filed a formal EEO complaint in which

she claimed that the agency discriminated against her and subjected her

to harassment on the bases of her sex (female), race (Caucasian), and in

reprisal for her previous EEO activity under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. �2000e, et seq. Complainant claimed

that she was discriminated against and subjected to harassment when:

1. On November 29, 1995, and December 1, 1995, complainant was placed

in an absent without leave (AWOL) status.

2. The Personnel Office canceled vacancy announcements 95-0272, 95-0491,

95-0572, 95-0609, 95-0616, and 95-0633.

3. Complainant did not receive her annual and sick leave accruals for

pay period 23.

4. Complainant did not receive her paycheck for pay period 26.

5. On February 5, 1996, complainant received an unfair performance

appraisal.

6. Complainant received an annual individual performance report for the

period from January 1 - December 31, 1995, that was based on nonexistent

standards.

The agency accepted the complaint for investigation. Subsequent to the

completion of the investigation, complainant requested a hearing before

an EEOC Administrative Judge. On July 6, 1998, the Administrative Judge

remanded the complaint to the agency after complainant failed to appear

for two prehearing conferences.

The agency issued a final order finding that no discrimination occurred.

The agency determined that complainant failed to establish a prima

facie case of race discrimination with regard to her placement in an

AWOL status. The agency noted that two other employees outside of her

protected group were placed in an AWOL status by complainant's manager.

The agency determined that it articulated a legitimate, nondiscriminatory

reason for complainant's placement in an AWOL status. According to the

agency, complainant did not call in to request leave despite several

warnings that she should do so.

With regard to complainant's second claim, the agency determined that

complainant failed to establish a prima facie case of reprisal and

discrimination on the bases of race and sex. The agency also determined

with regard to the reprisal claim that there is no evidence that the

various managers who canceled the vacancy announcements were aware of

complainant's prior EEO activity. Assuming arguendo, that complainant had

established a prima facie case, the agency determined that it articulated

legitimate, nondiscriminatory reasons for its actions. The agency stated

with regard to vacancy announcement # 95-0272, that although complainant

was listed on the selection certificate, the certificate was canceled by

management due to a hiring freeze. As to vacancy announcement # 95-0491,

the agency noted that complainant was selected for the Personnel Actions

Clerk position, but that complainant requested a reassignment to her

prior position because she was experiencing transportation problems.

With respect to vacancy announcement # 95-0572, the agency determined

that complainant did not apply for the secretarial position and the

announcement was canceled. With regard to vacancy announcement #

95-0609, the agency determined that complainant applied for the staffing

clerk position as a redeployment eligible. According to the agency,

complainant, as a full-time employee, was not eligible for the staffing

clerk position because it was seasonal. The agency stated that a

redeployment eligible candidate must have the same work schedule as that

of the position being filled. As for vacancy announcement # 95-0616,

the agency determined that complainant did not properly apply for the

file clerk position. The agency further stated that the announcement

was canceled as the position was not approved to be filled. With regard

to vacancy announcement # 95-0633, the agency determined that complainant

failed to submit a merit promotion questionnaire with her job application.

According to the agency, it was not possible to determine if complainant

was qualified for the lead clerk position without the merit promotion

questionnaire. The agency observed that only those applicants who

submitted the required paperwork were referred for selection.

With regard to complainant's third claim, the agency determined that

complainant was credited with her annual leave and sick leave accruals for

pay period 23. With respect to the fourth claim, the agency stated that

complainant received her paycheck for pay period 26 one pay period late.

According to the agency, complainant did not receive her paycheck at the

usual time because complainant was reassigned from one unit to another

unit and a change in her organization code was not made. As for the fifth

claim, the agency determined that complainant's performance rating of

�Fully Successful� was justified based on complainant's frequent absences

from work. Finally, as to the sixth claim, the agency determined that

the information used to evaluate complainant came from her departure

rating for her six month detail with the Information Systems Division, her

previous evaluation, and performance feedback sheets given to complainant

in February 1995. The agency determined with regard to all six claims

that complainant failed to show that the articulated reasons for its

actions were pretextual. The agency further stated that some of the

claims were mischaracterized or simply did not occur.

On appeal, complainant maintains that the Chief of the Employment Section

of the Personnel Office cancelled vacancy announcements because he was

aware of complainant's use of the EEO process from when he was in the

Labor Relations Office. Complainant also disputes that a hiring freeze

was in effect and that therefore the agency improperly canceled vacancy

announcement # 95-0272. According to complainant, a grade level seven

employee became a grade level eleven employee without any grade level

nine time-in-grade experience and a grade level nine male employee was

converted to the GS-11 grade level in the six month period before vacancy

announcement # 95-0272 was posted. Complainant further claims that her

performance records have been falsified by a Black, female management

official who previously had caused difficulties for complainant.

In response, the agency asserts with regard to the first claim that

complainant has not explained why she failed to appear for work or

call in to request leave on November 29, 1995 and December 1, 1995.

The agency notes that complainant received many prior warnings about her

responsibility to properly request leave and that she had previously

been placed in an AWOL status. With respect to the second claim,

the agency asserts that the only position that was canceled for which

complainant could have been selected was the position advertised in

vacancy announcement # 95-0272. The agency maintains that this position

was not filled due to a pending reorganization and a hiring freeze.

In terms of vacancy announcement # 95-0491, the agency notes that

complainant was selected for the position, but she requested a transfer

back to her prior position because of transportation difficulties.

The agency states that complainant was not on any of the candidate lists

for vacancy announcement # 95-0572, and that in any event, complainant was

not qualified for the position because she lacked the typing requirement.

With regard to vacancy announcement # 95-0616, the agency asserts that

complainant did not qualify as a redeployment eligible for this position

because she was only a GS-4. As for vacancy announcement # 95-0609,

the agency states that during the EEO counseling process complainant

acknowledged that she did not want a seasonal position. With respect

to vacancy announcement # 95-0633, the agency states that complainant

could not be considered for the position because she failed to submit

the mandatory merit promotion questionnaire form.

With regard to the third claim, the agency notes that the timekeeper

states that complainant received her leave accruals for pay period 23.

With respect to the fourth claim, the agency asserts that complainant

did not receive her paycheck on time because a garnishment on her wages

required her paycheck to be processed manually. With regard to the fifth

and sixth claims, the agency notes that complainant's manager explained

that the feedback about complainant's work on her detail was that she

performed adequately but not above a �Fully Successful� level. The agency

states that complainant's rating reflected the fact that she was in a

training status and still learning the programs. The agency notes that

although complainant received information about numerical standards and

feedback reflecting numerical standards, she did not receive a measured

rating because she did not spend sufficient time on measured work.

The agency asserts that complainant has failed to establish that any of

the articulated reasons for its actions were pretext.

Applying the standards set forth in McDonnell Douglas Corp. v Green, 411

U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,

310 (5th Cir. 1981) and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the

Commission agrees with the agency that complainant failed to establish

by a preponderance of the evidence that the agency's articulated reasons

for its actions in claims 1-6 were a pretext for discrimination.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether she has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

In this case, the Commission finds that the agency has articulated

legitimate, nondiscriminatory reasons for its action. Consequently,

we will dispense with an examination of whether complainant established

a prima facie case with respect to the above cited issues and review

below, the reasons articulated by the agency for its actions as well as

complainant's effort to prove pretext.

We find that the arguments presented by complainant do not establish,

by a preponderance of the evidence, that the agency's stated reasons

for its actions in claims 1-6 were pretextual. With regard to claim

(1), complainant has not refuted the agency's position that complainant

was placed in an AWOL status because she failed to appear for work

or call in to request leave. As for the cancellation of six vacancy

announcements, complainant has not refuted the agency's stated reasons

that a hiring freeze was in effect; that she was selected for a position

but subsequently requested a transfer to her prior position; that

complainant was not eligible for a seasonal position; that she failed to

submit the required merit promotion questionnaire form; that complainant

did not apply for one of the positions; and that she was not eligible for

another position because she was a GS-4 employee, and therefore she was

not eligible for the vacancy as a redeployment eligible. With regard

to claim (3), complainant has not refuted the agency's position as

well as documentation in the record indicating that she received her

leave accruals for pay period 23 in 1995. With respect to claim (4),

complainant has not established that the agency's reasons for the late

paycheck, an error in the organizational code due to complainant's change

in positions and a garnishment against her, were pretext intended to

mask discriminatory intent.

As for claim (5), a review of complainant's performance appraisal reveals

that complainant received an overall rating of �Fully Successful� and

ratings of �Fully Successful� in the critical job elements of quantity,

job interaction, and workload/inventory management. Complainant also

received ratings of �Exceeds Fully Successful� in the critical element

of quality and �Outstanding� in the non-critical element of other

duties and assignments. In terms of the quantity element, the official

evaluating complainant stated that she was unable to meet production

standards while completing IMF document requests. With regard to the

workload/inventory management element, the agency official stated that

during complainant's assignment to the tape library, she sometimes

required supervision to ensure that her work was completed on time.

The official further noted that occasionally complainant did not meet

the work deadlines. We find that complainant has not established,

by a preponderance of the evidence, that her overall rating of �Fully

Successful� was the result of discriminatory intent. With respect

to claim (6), the agency explained that although complainant received

information about numerical standards and feedback reflecting numerical

standards, she did not receive a measured rating because she did

not spend enough time on measured work. According to the agency,

the information used to rate complainant was her departure rating in

the Information Systems Division, her previous performance evaluation,

and performance feedback sheets given to complainant in February 1995.

We find that complainant has not established that the standards utilized

by the agency to evaluate her performance reflected discriminatory intent.

With regard to complainant's claim of harassment, we note that in Harris

v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court

reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57,

67 (1986), that harassment is actionable if it is sufficiently severe or

pervasive to alter the conditions of the complainant's employment. The

Court explained that an �objectively hostile or abusive work environment

[is created when] a reasonable person would find [it] hostile or abusive�

and the complainant subjectively perceives it as such. Harris, supra

at 21-22.

Insofar as complainant contends that the incidents of which she complained

constituted harassment based upon her membership in protected classes,

we find, for the reasons set forth above, that she failed to refute

the legitimate, nondiscriminatory reasons proffered by the agency for

its actions. Accordingly, complainant also failed to establish that

such actions were taken on the basis of her membership in the protected

classes, and thus, such actions cannot constitute prohibited harassment.

See Wolf v. United States Postal Service, EEOC Appeal No. 01961559

(July 23, 1998).

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision,

because a preponderance of the record evidence does not establish that

discrimination occurred.

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

December 6, 2001

__________________

Date