0120092668
10-29-2010
Tanya Paige, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Tanya Paige,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120092668
Hearing No. 541-2008-00012X
Agency No. EEO-07-003-A2
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 12, 2009 final order 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.
BACKGROUND
During the period at issue, Complainant was employed as a Senior Family Housing Specialist, GS-13, at the Agency's Quality Assurance Division (QAD), Denver Home Ownership Center (HOC) in Denver, Colorado.
On November 16, 2006, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American) and in reprisal for prior protected activity when:
1. on October 4, 2006, the Director of the Quality Assurance Division placed her on a Performance Improvement Plan (PIP);
2. on August 14, 2006, the Acting Branch Chief of the Quality Assurance Division placed her on a 60-day Opportunity to Improve Performance and Performance Improvement Plan (OIP-PIP);
3. as of August 2, 2006, she has not been given the opportunity to serve as acting supervisor, has not been assigned to special projects to earn cash awards and outstanding performance ratings, and has been excluded from staff meetings;
4. on July 12, 2006, she was issued an "unacceptable" rating during a progress review for the period March 10, 2006 to July 12, 2006;
5. her performance appraisals have steadily declined since D1 was promoted to the Director's position;
6. her supervisor did not process her request for religious credit hours in accordance with the Department's Religious Compensatory Time policy; and
7. she was offended by the way her supervisor communicated with her and referred to an email on March 19, 2007.1
Following the investigation into the formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 23, 2009, the AJ issued a decision by summary judgment in favor of the Agency. In its May 12, 2009 final order, the Agency implemented the AJ's decision.
In her decision, the AJ found that Complainant did not establish a prima facie case of race and reprisal discrimination. The AJ nonetheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding complainant's harassment claim, the AJ found that the evidence in the record did not establish that Complainant was subjected to harassment based on race and retaliation. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment. Moreover, the AJ determined that the fact that Complainant does not agree with her supervisors' evaluation of her work and that she took offense at minor or innocuous supervisory actions does not transform her allegations into an actionable claim of harassment.
Regarding claim 1, D1 stated that on October 4, 2006, Complainant was issued a PIP because of her marginal rating in at least one element. D1 stated that the purpose in issuance of the PIP was so that Complainant's rating could be upgraded based on her improved performance. Specifically, D1 stated that when the Acting Branch Chief (A1)'s ended on September 24, 2006, she gave her an update on her evaluation of Complainant's performance. D1 stated that A1 indicated that Complainant's performance had improved greatly "but not to the Fully Successful level on all elements. Her performance remained Marginal on at least one element, the Technical element. The PIP was required at this point in time, since performance was rated as Marginal in one element." D1 stated that after discussions with Human Resources and HOC management staff, "the final determination was made that I needed to be the individual to issue the new, less serious document known as the PIP, since [A1] was no longer the Acting Branch Chief (Supervisor) and another temporary Acting Branch Chief would be put into place for a very short prior to the permanent supervisor arriving. HR indicated this was the prescribed progression once an individual improved to a point where there were no longer unacceptable ratings, yet marginal ratings remained."
Regarding claim 2, A1 stated that on August 14, 2006, she issued Complainant an OIP/PIP. A1 stated that an OIP/PIP "is required to be given to any employee when any Critical Element (CE) receives Successful or Unacceptable, and to give specific information on how or what is required of the recipient to achieve a higher rating." The record reflects in the August 14, 2006 OIP/PIP letter, A1 placed Complainant on notice that she had not satisfactorily performed four of her seven critical elements as stated in her Work Planning and Performance Appraisal forms. A1 further notified Complainant that the OIP/PIP "is to help you meet at least an acceptable level of competence (Marginally Successful) to be retained in your positions in each of the two CE's in which your performance was Unacceptable: No. 3 Workload Management and No. 4 Written/Oral Communication Skills."
D1 stated that she had a discussion with A1 wherein she shared the recommended ratings by the former Acting Branch Chief. D1 stated that A1 "also provided me with the supporting documents. [A1] also noticed serious deficiencies in [Complainant's] work. [A1] informed me that after reviewing [Complainant's] work in great detail, and applying the definitions of each EPPES element, that her work fell into the definition of unacceptable in some elements. I concurred with rating recommendations made by [A1] and [former Acting Branch Chief]." Furthermore, D1 stated that the Complainant's "unacceptable rating necessitated the OPI/PIP."
Regarding claim 3, D1 stated that Complainant has never approached D1 requesting details to the vacant Branch Chief assignment, or any other assignment during 2006, until Complainant mentioned it during the EEO arbitration/mediation process. D1 indicated that Vacant Branch Chief positions have been announced in late 2004 as well as in June of 2006 and Complainant did not apply on either occasion. D1 further stated that Complainant never approached her requesting details to special projections. D1 stated that an e-mail was sent to all internal Denver staff offering the Credit Reporting contract GTR projects, and "several staff responded and I awarded the task to [Complainant] in October 2006."
With respect to Complainant's allegation that she was excluded from staff meetings, D1 stated that staff meetings "are held in a conference room not at individuals' cubicles and are formal meetings. We have no informal meetings." D1 stated that Complainant attended formal meetings in the summer and fall of 2006.
A1 stated that she does not recall any informal staff meetings "at any time at which changes in policy were discussed during the Summer/Fall of 2006. In addition, because it is often the case that not all staff is in the office at any given day/time, when any new or changes to QAD procedures are made and/or discussed, informally or formally, there is always written information provided so that everyone can be informed of anything relating to our work. Thus, while everyone might not be at all staff meeting, everyone is advised of the new information in writing, either via an e-mail or by the information included in the office's J Drive in Word. Thus, no one is ever 'excluded' from relevant information."
Regarding claim 4, A1 stated "I did not perform/provide 'an interim evaluation of the Complainant's work;' however, I did convey a Progress Review on July 12, 2006. Note that because I had only been an Acting Branch Chief for a month prior to conveying the Progress Review, the ratings were primarily based on documentation and information provided by the [prior Acting Branch Chief]."
The former Acting Branch Chief (hereinafter referred to as "former A1") stated that after his Acting Branch Chief detail ended, he was relocated to the Agency's St. Louis, Missouri field office. The former A1 stated on or about June 26, 2006, he participated in a telephone conference call with D1 and A1. Specifically, the former A1 stated that the subject of the conversation was Complainant's work performance "during the period of time I acted as her first-line supervisor. The call was requested by [D1] for the purpose of seeking additional comment concerning my recommended rating of [Complainant's] performance as reflected on her interim 'Progress Review', which I had completed as the 'Rating Official' while detailed as Acting Branch Chief. I had recommended a rating of 'Marginally Successful' in one or more of [Complainant's] 'Elements and Standards' that related to her 'Progress Review.' My rating recommendation for [Complainant], together with those of the other employees I supervised was subject to concurrence by [D1] as the 'Reviewing Official.' The interim reviews, when approved by [D1], were to be conveyed to the employees by [A1], who by that time would have assumed my duties as Acting Branch Chief."
Regarding claim 5, D1 stated "it is true the Complainant's Performance Ratings have dropped in comparison to others in her unit." Specifically, D1 stated that five Branch Chiefs have expressed concerns about Complainant's performance and "each Branch Chief has counseled the Complainant about her deteriorating performance and worked with her with the goal of improving her work. However, the ratings at the end of the year reflect her steadily declining performance."
D1 further stated that she was the Reviewing Official of Complainant's performance rating recommended by her first line supervisor. D1 stated that "five different Branch Chiefs have reviewed and evaluated [Complainant's] work on a day-to-day basis. I concurred with the recommended of each first-line supervisor (Branch Chief)." D1 stated that on October 23, 2006 and November 3, 2006, she met with Complainant concerning her performance. Specifically, D1 stated "these were PIP meetings to keep ongoing support in place to fill in the gap between an Acting Branch Chief [named Acting Branch Chief] and the permanent Branch Chief's arrival on November 12, 2006 [named Branch Chief]. I held the meetings based on the direction from [HOC Operations] (and in concurrence with [Deputy HOC Director]), [two named Human Resources officials]. [Complainant] and I met in my office to review work that had been done for the most recent period. Errors and/or omissions were discussed as well as discussing items that were done well."
The former A1 stated that he conducted "numerous coaching and counseling sessions with [Complainant], at which times I provided her constructive feedback concerning various aspects of her assigned duties. The feedback was both complimentary and corrective when appropriate to the situation. With regard to the corrective feedback I was most concerned by [Complainant's] failure to compose literate correspondence that related to citations of technical findings of mortgagee error discovered in cases assigned to her for review. On several occasions I personally amended the correspondence to correct fragmented and incoherent sentences in those letters that had been submitted to me for concurrence."
Regarding claim 6, Complainant's supervisor (S1) stated that he confused regular credit hours with religious credit hours and that he corrected his original instructions once he learned of his mistake. Specifically, S1 stated that on March 26, 2007, "I verbally communicated to [Complainant] that I had forgotten that religious compensatory time can be earned after being taken and advised her of the credit for eight hours not taken in December, 2006. I informed her that she, therefore, only needed to earn 2.75 hours before or after April 5 and 6 [2007] to cover the proposed time off. She subsequently proposed and earned between March 19 and March 26, 2007 the hours necessary to satisfy the time off requirement." S1 stated that on March 30, 2007, he approved Complainant's request for religious credit hours and she took the leave as requested.
Regarding claim 7, S1 stated that his reaction to Complainant's contention that she was offended "by my response to her e-mail message is that I am sorry that she felt offended, but I see no reason for her to have felt offended. On 03/19/2007 I was informed by [D1] that she had been asked for an update on [Complainant's] progress in training for the Government Technical Representative position. I provided one in an e-mail to [D1] and sent a courtesy copy to [Complainant] so that she could see what I had communicated."
On appeal, Complainant argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, C For instance, Complainant argues that the AJ did not address all the information she submitted to her. Complainant further argues that the submitted information "demonstrated how Complainant's work was evaluated inconsistently as compared to her Caucasian co-workers, which also demonstrates the different standard she and the other minorities were measured against. Furthermore, the criteria for placing her on the OIP/PIP plan was determined by evaluations that didn't judge her job performance skills against objective performance criteria elements."
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Regarding the AJ's determination to issue a decision without a hearing, we note that the record supports the AJ's determination that Complainant did not provide "significant, probative evidence" and that from such evidence, a disputed fact could be resolved in Complainant's favor. Therefore, 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 order because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
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
October 29, 2010
__________________
Date
1 The record reflects that claims 6 and 7 were later amended to the instant formal complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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