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