0720050077
11-15-2007
Se Retha Posey, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Se Retha Posey,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 07200500771
Hearing No. 110-A4-0205X
Agency No. TD-01-1215R
DECISION
Following its June 13, 2005 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding of discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following
reasons, the Commission REVERSES the agency's final order. We direct
the agency to take appropriate remedial relief as set forth in the Order
below.
ISSUES PRESENTED
Whether there is substantial evidence to support the AJ's finding of
discrimination on the bases of sex, age, race and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Correspondence Tax Examiner, GS-7 at the Wage and Investment Division,
in Chamblee, Georgia. Prior to this time, complainant worked for 10 years
in the Automated Collection System (ACS), Atlanta Call Site. The record
reveals that from June 2000 to June 2001, complainant's supervisor was
KM, Supervisory Tax Examiner (a 36-year old, black female). At the end
of June 2001, KM left her supervisory role. In May of 2003, complainant
was supervised by TM, who was the Acting Manager, Team Leader.
The issues as framed by the AJ and as set forth in the complaint were
as follows:
1. Whether complainant was discriminated against on the bases of race
(Caucasian), sex (female), color (White), physical disability (high
blood pressure, sleep apnea and severe asthma), mental disability (panic
attacks, post-traumatic stress disorder) and age (D.O.B. 03/01/47) when
from June 2000 through June 2001, complainant was subjected to hostile
work environment by KM when:
a. KM ridiculed her in front of other employees and looked at her in a
disrespectful manner;
b. in June 2000, KM stopped talking to complainant and communicated with
her through sticky notes;
c. on November 15, 2000, KM denied complainant's leave request;
d. on November 8, 2000, KM issued complainant a memorandum of admonishment
regarding her failure to fully pay her 1998 Federal Income Taxes;
e. on December 5, 2000, KM issued complainant a memorandum, regarding
her use of unscheduled leave;
f. on February 23, 2001, complainant received a memorandum from KM that
indicated her performance evaluation was being revalidated from the
prior year;
g. on June 27, 2001, complainant was issued a memorandum regarding
unacceptable performance which indicated that complainant was failing in
2 critical elements: Job Interaction and Workload/Inventory Management;
h. KM issued complainant a 60-day opportunity letter, which informed
complainant that she would have 60 days to demonstrate that she was
performing at the minimally successful level in the two aforementioned
critical elements; and
i. KM rolled her eyes at complainant in front of the staff and issued
her a memorandum regarding errors on her timesheet.
2. Whether complainant was discriminated against on the bases of race
and in retaliation for prior protected activity when from May 5, 2003
to June 17, 2003, she was subjected to harassment by TM when:
a. on May 5, 2003, TM attempted to lower her annual performance rating;
b. on June 3, 2003, complainant was issued a letter, which stated she
was insubordinate;
c. on July 16, 2003, complainant was restricted in the amount of
administrative time she could use to rebut reviews of her work;
d. on July 16, 2003, TM spoke harshly to complainant; and
e. on July 17, 2003, complainant was issued a second letter, which stated
she was insubordinate.
The AJ held a hearing on January 19, 2005, and issued a decision on
April 26, 2005. The AJ concluded that complainant was subjected to
unlawful harassment based on her age, race, and sex for claim one; and
concluded that complainant was subjected to retaliatory harassment as to
claim two. However, the AJ concluded that complainant failed to establish
a prima facie case of disability discrimination. More specifically,
the AJ found that KM overly scrutinized complainant and other older
white females which created a hostile work environment from June 2000
until June 2001. The AJ noted that older white females were being
given additional duties that black employees did not have to perform,
and their evaluations were being lowered while younger black females'
evaluations were higher. Specifically with respect to complainant, the
AJ found that KM constantly over scrutinized complainant's work, and gave
her a significantly lower performance appraisal than other black females
in the facility without justification. The AJ noted that complainant
always received good performance evaluations from other supervisors.
Accordingly, the AJ determined that the alleged actions, when viewed
collectively, were sufficiently severe or pervasive to constitute
harassment due to a hostile work environment.
As to claim (2), the AJ found that from May 5 to July 17, 2003, TM
subjected complainant to a hostile work environment in reprisal for
complainant filling the instant complaint.2 Specifically, the AJ found
that TM was inundating complainant on a daily basis with documentation
regarding complainant's work performance. The AJ also found that
TM issued complainant insubordination letters for minor incidents.
Specifically, on May 5, 2003, TM issued a letter of insubordination
to complainant because she did not like complainant's tone of voice
when complainant responded to a question. During the hearing, the TM
testified that complainant did not raise her voice, but that she did
not like the tone. The AJ also found that TM also issued complainant
an insubordination letter because complainant was taking too much
time in rebutting TM's documentations regarding her work performance.
The AJ concluded that TM's own testimony that the evaluations that she
did for complainant were intimidating and were not intended to improve
her performance (as well as her reference of complainant's prior EEO
activity) were direct evidence of retaliatory motive. In addition, the
AJ found that as soon as TM was removed from supervising complainant,
complainant's ratings went up, and she did not receive any more complaints
regarding her work performance. Therefore, the AJ concluded that TM's
actions constituted unlawful harassment toward complainant.
The AJ issued a separate decision awarding relief and compensatory damages
for the agency's discriminatory actions. As relief, the AJ awarded
complainant $20,000.00 in non-pecuniary damages, and $572.02 in pecuniary
damages. In addition, the AJ ordered the agency to restore 60 hours
of annual leave to complainant and to post a notice of discrimination
at the agency's bulletin board. The AJ also awarded attorney's fees in
the full amount requested of $10,437.50, as the agency did not object.
The agency subsequently issued a final order rejecting the AJ's finding
that complainant proved that she was subjected to discrimination as
alleged.
Although the agency submitted an appeal form, it did not submit a
brief in support of its appeal. In response to the agency's appeal,
complainant requests that we reverse the agency's findings, and find
that the AJ's decision is supported by substantial evidence.
ANALYSIS AND FINDINGS
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).
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws. Harassment of an employee that would
not occur but for the employee's race, color, sex, national origin,
age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d
1129, 1138-1139 (D.C. Cir. 1985). In order to establish a claim of
discriminatory harassment, complainant must show that: (1) she belongs
to one or more statutorily protected classes; (2) she was subjected
to unwelcome conduct; (3) the conduct complained of was based upon
her race, color, national origin, sex, or previous EEO activity; (4)
the conduct had the purpose or effect of unreasonably interfering with
complainant's work performance or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the agency. LaCombe v. Department of Veterans Affairs,
EEOC Appeal No. 01A23543 (March 24, 2004).
We find that substantial evidence in the record supports the AJ's finding
that complainant satisfied all of these criteria. The testimony of
complainant and her co-workers reveals that white older employees were
singled out for worse treatment. Specifically, white older employees were
being given additional duties that younger black females were not required
to do and as a group were rated lower on their performance appraisals
than black, young employees. Substantial evidence of the record shows
that complainant was under constant scrutiny and criticism regarding
her work, and was rated substantially lower than other employees.
We concur with the AJ that the agency's nondiscriminatory reasons for
its actions, namely, complainant's poor performance, were not supported
by the record. The AJ noted that complainant provided documentation
that prior to and after being supervised by KM and TM, her supervisors
found no problem with her performance. Moreover, we find that KM and TM
failed to articulate the nature of complainant's performance problems.
As such, we affirm the AJ's finding that complainant was subjected to
unlawful harassment by TM and KM.
We also note that in its appeal the agency is not challenging the
amount of compensatory damages and/or attorney's fees. Accordingly,
upon review of the record, we find that the AJ properly applied
the correct legal principles, and properly analyzed the record, in
determining that complainant is entitled to an award of $20,000.00 as
non-pecuniary damages3 and $572.02 in pecuniary damages. We also find
that the amount of $10,437.50 in attorney's fees was reasonable and
sufficiently documented.
CONCLUSION
Accordingly, after a careful review of the record, the Commission REVERSES
the agency's final order and directs the agency to take corrective action
in accordance with this decision and the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall restore 60 hours of annual leave to complainant.
2. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall provide complainant with a compensatory damages
award for non-pecuniary losses, in the amount of $20,000.00 for the
emotional and physical distress suffered by complainant that was
proximately caused by the agency's unlawful discrimination.
3. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall provide complainant with a compensatory damages
award for pecuniary losses, in the amount of $572.02.
4. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall pay complainant attorney's fees in the amount
of $10, 437. 50.
5. Within thirty (30) calendar days from the date this decision becomes
final, the agency will expunge from its records, from June 2000 to June
2001, and from May 5, 2003 to June 17, 2003, any reference to the actions
found to be discriminatory, i.e., memorandums, insubordination letters,
and negative performance appraisals.
6. To the extent that it has not already done so, within sixty (60)
calendar days from the date this decision becomes final, the agency is
ordered to provide EEO training to all of the responsible management
officials at the office of the Internal Revenue Service, in Chamblee,
Georgia, regarding their obligation not to engage in unlawful employment
discrimination against employees pursuant to Title VII.
7. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its office of Internal Revenue Service in
Chamblee, Georgia, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
November 15, 2007
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ________which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., has occurred
at the Internal Revenue Service, at the Wage and Investment Division,
in Chamblee, Georgia facility (hereinafter this facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
This facility was found to have discriminated against an employee on
the basis of sex, age, race and in reprisal for engaging in protected
EEO activity when responsible management officials created a hostile
work environment and failed to take appropriate action to eliminate it.
The facility was ordered to pay compensatory damages, require Title VII
training for the responsible management officials and to consider taking
disciplinary action against these individuals.
This facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
29 C.F.R. Part 1614
Date Posted: ______________
Posting Expires: ____________
29 C.F.R. Part 1614
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 The record reveals that complainant filed the instant complaint on
August 19, 2001, but on March 29, 2002, the agency dismissed the complaint
for failure to cooperate. In Posey v. Department of Treasury, EEOC Appeal
No. 01A23427 (May 2, 2003), the Commission reversed the agency's dismissal
and remanded the case for further processing. The agency reinstated
the complaint for processing on July 11, 2003. On September 15, 2003,
complainant amended her complaint and included claim (2).
3 Moreover, we find that the award is not "monstrously excessive"
standing alone, is not the product of passion or prejudice, and is
consistent with the amount awarded by the Commission in similar cases.
See See Farrell v. Dept. of Treasury, EEOC Appeal No. 07A20043 (May 5,
2003) ($20,000 for sex discrimination which resulted in insomnia, anxiety,
stress, depression, loss of enjoyment of life).
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0720050077
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0720050077
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036