0120110941
05-18-2011
Shirley Skipper-Scott, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Shirley Skipper-Scott,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120110941
Agency No. P20090666
DECISION
On November 29, 2010, Complainant filed an appeal from the September 28, 2010 order of an EEOC Administrative Judge (AJ), concerning an equal employment opportunity (EEO) complaint claiming 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. The AJ dismissed Complainant's request for a hearing because she did not comply with his scheduling order, and remanded the formal complaint to the Agency to issue a final decision without a hearing. After Complainant filed her appeal, the Agency issued a final decision on December 16, 2010. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Deputy Case Management Coordinator at the Agency's Federal Correctional Complex facility in Yazoo City, Mississippi.
On September 4, 2009, Complainant filed a formal EEO complaint claiming that she was the victim of unlawful employment discrimination on the bases of race (African-American), sex (female), and in reprisal for prior protected activity when:
from October 2008 to April 23, 2009, the Agency subjected Complainant to disparate treatment and harassment in the form of an unfavorable yearly evaluation, denial of leave, assignment of additional duties, not being permitted to act in the capacity of Case Management Coordinator, being called at home while on leave, not being permitted to take time off after working more than twelve hours, and being constantly monitored by her immediate supervisor.
The record contains a narrative statement from Complainant setting forth the following allegations. On March 31, 2009, after Complainant, a white male coworker (CW1), and their immediate supervisor (African American female) (S1) worked overnight to process the arrival of inmates from a federal correctional facility in Florida, Complainant contends she left at midnight and was forced to return to work at 7:30 a.m. Complainant contends that CW1 was allowed to return several hours later than she was, and S1 took the day off.
On April 16, 2009, Complainant received a yearly evaluation from S1 that she determined contained incorrect and negative information. Complainant stated that while her overall rating on the evaluation was "exceeds", she received a "satisfactory" in two elements. Complainant contends she never received a rating of "satisfactory" at any point during the year, and S1 did not follow proper rating procedure by failing to aggregate ratings she received throughout the year. Complainant further alleges the CW1 received higher ratings than she did for the same level of performance.
Between April 14 and April 23, 2009, while CW1 was away on training, Complainant asserted that she was forced to perform his duties. When she complained about it, she alleges that S1 retaliated against Complainant by forcing her to hold impromptu case managers' meetings, and that S1 allegedly did not impose such demands upon CW1. Complainant further alleges S1 regularly permitted CW1 to act for her when she was absent, but that Complainant was never afforded the same opportunity. She further claimed that in April 2009, S1 selected a lower graded male Hispanic coworker to act in her absence rather than selecting Complainant.
On April 20, 2009, Complainant contends the Acting Warden (AW) approved her sick leave for the next day, but S1 did not do anything about it. The next day, April 21, 2009, S1 called Complainant at home and indicated she did not go through the proper chain of command to request leave. Complainant stated that S1 does not have permission to call her at home. Complainant further contends that CW1 has never had a problem getting leave approved.
An affidavit, which will be detailed below, was submitted by S1 during the investigation addressing Complainant's allegations
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 requested a hearing. However, on September 28, 2010, the AJ dismissed the hearing request on the grounds that Complainant failed to comply with the terms of his scheduling order. Specifically, in an April 28, 2010 order, the AJ had instructed Complainant to produce within seventy-five days, several statements and disclosures, including an itemized list of damages, evidence Complainant intended to rely on at hearing, a witness list, and an outline of the facts favorable to Complainant. The AJ further warned that Complainant's failure to provide the requested information would constitute a waiver of Complainant's right to a hearing. At the time the AJ remanded the complaint to the Agency for a final decision, Complainant had failed to submit any of the requested information. Instead, Complainant sought to amend her complaint by letter to the AJ to add a claim of subsequent retaliation. The AJ denied Complainant's motion to amend, but instructed the Agency to process Complainant's proposed amendment as a new complaint.
The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination. Specifically, the Agency concluded that S1 articulated legitimate, nondiscriminatory reasons in response to all of the allegations, and Complainant failed to establish pretext by sufficiently rebutting S1's response.
ANALYSIS AND FINDINGS
As a preliminary matter, we have reviewed the AJ's decision to dismiss Complainant's hearing request because she failed to comply with his scheduling order requiring her to submit a variety of pre-hearing information within a set timeframe. Instead of doing so, Complainant submitted a letter on June 30, 2010, that was unresponsive to the AJ's direction. In that letter, she sought to amend the complaint to add new allegations of retaliation. The AJ issued a separate order denying the request to amend, but directing the Agency to process the new claims as a separate complaint. After reviewing the record and considering Complainant's arguments on appeal, we do not find that the AJ abused his discretion in these matters. Accordingly, the AJ's decision to dismiss Complainant's hearing request will not be reversed.
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In this case, S1 articulated legitimate, nondiscriminatory reasons for all of her actions. In her affidavit, S1 said that Complainant, CW1, and S1 worked overnight on March 31, 2009, to process the incoming inmates, but each worked slightly different hours. Complainant worked until midnight. While S1 allowed CW1 to leave briefly to attend to his family, CW1 returned and worked until 3:00 in the morning. S1 worked throughout the night and did not leave the Complex until 6:30 a.m. After discussing the hours with AW, S1 permitted CW1 to arrive an hour or two late. When S1 woke up the following day, she telephoned AW who said she did not need to come in. Complainant has not produced any evidence to establish that S1's explanation was a pretext for discriminatory motives.
With respect to her annual evaluation, S1 testified that Complainant received "satisfactory" with respect to communications because Complainant did not always keep S1 properly informed. However, Complainant received an overall "exceeds" rating on her evaluation. S1 noted that CW1 also received an "exceeds" rating - that Complainant and CW1 received the same overall rating. Complainant attempts to demonstrate S1's explanations to be pretext by stating that Agency policy requires S1 to aggregate the performance ratings she received throughout the year to determine her annual rating. However, Complainant is unable to cite the policy she believes is applicable to her situation, and a review of the record does not reveal any such policy.
S1 addressed Complainant's allegations that S1 never gave Complainant the opportunity to cover for her, forced Complainant to hold impromptu meetings, and assigned Complainant additional duties. S1 testified that the case managers were supposed to have regular meetings on the first Wednesday of each month, but were not doing so. During the month in question, S1 directed Complainant to resume monthly meetings. Further, S1 said that when another case manager (in this case CW1), is out of the office for more than two days, the remaining case managers must handle the caseload. If the work was too burdensome, S1 would have relieved the case managers of the increased caseload. S1 also denied the allegation that Complainant was never given a chance to cover for her. At one point, S1 assigned coverage by determining who was actually at work. S1 allowed Complainant to cover for her a few times. Additionally, S1 testified she assigned coverage on a rotational basis. Complainant has been unable to show S1's explanations are mere pretext for discriminatory motives.
Complainant further alleges that S1 denied her leave requests. However, the record does not reveal any disapproved leave requests; S1 approved every request Complainant submitted. S1 further testified that approval may have been delayed because Complainant submitted leave by placing the request in the interoffice router system, rather than calling S1 or physically submitting the leave request to S1. With respect to the circumstances on April 20 and 21, 2009, S1 testified that she was unaware Complainant had requested sick leave for April 21, 2009. When Complainant did not come to work, S1 was worried, and called Complainant at home to check on her. Complainant solely argues that S1 did not have permission to call her at home. However, whether S1 had permission is irrelevant to the issue of whether S1 discriminated against Complainant. We can see no evidence, beyond Complainant's assertions, that demonstrate S1's articulated reasons to be pretext for discriminatory motives.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision
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
May 18, 2011
__________________
Date
2
0120110941
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110941