01a41762
08-05-2005
Toni Nicholas, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Toni Nicholas v. Department of the Treasury
01A41762
August 5, 2005
.
Toni Nicholas,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A41762
Agency No. 01-3275
Hearing No. 160-A3-8039X
DECISION
JURISDICTION
On January 15, 2004, complainant filed an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful 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.
On appeal, complainant requests that the Commission reverse the agency's
acceptance and implementation of an EEOC Administrative Judge's (AJ)
finding of no discrimination in violation of Title VII. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Seasonal Tax Resolution Representative (TRR) at the agency's Boston,
Massachusetts facility. On July 16, 2001, complainant contacted an
EEO counselor and filed a formal EEO complaint on September 19, 2001,
alleging that the agency discriminated against her on the bases of race
(Caucasian) and sex (female) when:
(1) she was subjected to a hostile work environment with regard to
working conditions, assignment of duties, lack of training, details,
furloughs, not being selected for permanent TRR positions, negative
documentation and work reviews, lack of teaching opportunities and
special assignments, overtime, annual leave, promotional opportunities
and performance recognition.
Complainant filed a second complaint on December 8, 2001, alleging that
the agency discriminated against her on the same bases and additionally
in reprisal for prior EEO activity when:
she received a letter of reprimand and an annual performance review
that was lower than she deserved.
The agency consolidated the complaints and at the conclusion of the
investigation, complainant received a copy of the investigative report
and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ adopted the agency's Statement in Support of a Decision without
a Hearing finding that the agency correctly stated the facts and law
and issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race or sex discrimination because there were no similarly situated
employees, not in complainant's protected classes, who were treated
differently than herself. Concerning the hostile work environment claim,
the AJ found that the incidents did not rise to the level of harassment,
nor were they pervasive and continuous.
With respect to the reprisal allegation, the AJ concluded that complainant
failed to establish a prima facie case of reprisal because the letter
of reprimand and annual performance review did not rise to the level of
a tangible employment action. The AJ further concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions and
complainant was unable to show pretext. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful retaliation.
FINAL AGENCY ACTION
The agency's final order accepted the AJ's finding that complainant was
not discriminated against or subjected to a hostile work environment on
the bases of her race or sex or that she was retaliated against.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when she referred to
her grade position as a GS-626 when it was a GS-526 which is a seasonal
position. Complainant contends that she was harassed by her supervisor
by his requiring her to log her work in a particular way and by his
frequent demands on her. She asserts that her effective demotion from Tax
Specialist to Tax Preparer supports her claim of harassment. She states
that there are two new EEO complaints by other employees against the same
supervisor claiming that there is a hostile work environment. Finally,
complainant raises new issues of discrimination related to her furlough
on December 5, 2003.
The agency contends that the new evidence in the form of two EEO
complainants lack the specificity needed to constitute new and material
evidence justifying a hearing. The agency requests that the appeal be
denied.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a �decision on
an appeal from an agency's final action shall be based on a de novo
review . . .�); see also EEOC Management Directive 110, Chapter 9, �
VI.B. (November 9, 1999). (providing that an AJ's �decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be
reviewed de novo�). This essentially means that we should look at this
case with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's and agency's, factual conclusions and
legal analysis including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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�).
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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 in dispute.
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 Corp. 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.
In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only after determining
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEC Appeal No. 01A24206 (July 11,
2003).
Initially, we address complainant's contentions on appeal. With respect
to the December 2003 furlough, complainant cannot raise new issues
of discrimination on appeal. If she wishes to raise new issues of
discrimination, she should contact an agency EEO counselor regarding
this claim. We find that complainant's contention on appeal that the AJ
erred when she referred to her position as a GS-626 when it was a GS-526
was correct but that it was harmless error. Concerning the additional
complaints of a hostile work environment filed against her supervisor,
complainant has failed to persuade the Commission that those complaints
are persuasive evidence in support of her complaint.
Turning our attention to the consolidated complaints before us, we
find that the incidents cited by complainant in her first complaint are
sufficiently severe and pervasive so as to state a claim of harassment.
We also note the AJ's error in finding that the letter of reprimand
and annual performance review rating alleged in the second complaint
did not rise to the level of a tangible employment action. However,
we conclude that the agency offered legitimate, non discriminatory
reasons for all of its actions which complainant failed to rebut with
evidence sufficient to put a genuine issue of material fact into dispute.
By way of example, we address the following:
Complainant stated that her supervisor showed preference towards men with
respect to assignments. A male, she stated, was given the Killed in
Terrorist Action (KITA) Coordinator assignment. Complainant's supervisor
stated that he requested volunteers at a group meeting and only one
person, a male, volunteered for the position. Complainant, he stated,
did not volunteer.
Complainant stated that males were assigned to work the counter,
and she was not. Complainant's supervisor stated that he and another
manager decided to keep the most experienced walk-in employees, who
were primarily males, at the counter and to use the seasonal employees
primarily to cover E-file and forms. He also stated that all available
full-time permanent female employees worked the counter regularly during
the 2001 filing season. He stated that complainant was the first seasonal
employee that he had trained to work the counter.
Complainant contended in her affidavit that preferential treatment was
shown to another seasonal employee who received Phase II Tax Resolution
Representative (TRR) training while she was on furlough. Complainant's
supervisor asserted that no one was offered the Phase II TRR training
in 2001 while he was a manager. He stated that complainant had been
sent to a total of 13 weeks of training between December 15, 2000 and
December 2003, which was more training than any other Field Assistance
employee received.
With respect to details, complainant stated that a Chinese male had been
detailed to the Andover office. The record reveals that the Chinese male
who was detailed to the Andover office was a permanent employee while
complainant was a seasonal employee. Complainant also stated that she
was furloughed for 12 weeks in 2001. The record reveals that all the
Boston seasonal employees, including complainant, were furloughed on
May 18, 2001.
Complainant stated that there were five permanent employees who had
been promoted to permanent TRR positions when she was more qualified.
The record reveals that there were nine candidates on the best qualified
list, including complainant, for the five TRR positions. Four of the
selectees were White males and one was a Chinese male.
Complainant stated that she was told that she was failing critical
elements regarding conduct and performance. She alleged that this
would cause her to receive a poor performance appraisal. The record
reveals that complainant received a counseling session on November 8,
2001 regarding chronic tardiness, for leaving early, not abiding by
her work schedule, insubordination and problems with her co-workers.
Complainant's supervisor stated that he told complainant in her counseling
review that she was frequently late and did not get along with other
employees and management. One other female employee, he stated, came
in late and was counseled.
With respect to overtime, complainant stated that she was not given
time to prepare for the Classroom Instructor Training Class (CITC)
and she had to work one hour and one half past her tour of duty
to prepare for the CITC training. She stated that she later was
denied the overtime pay because she failed to have pre-authorization.
Complainant's supervisor stated that overtime has to be pre-approved,
and complainant never requested permission to work overtime. He stated
that she only asked for it after she had worked the overtime. He stated
that no other employee had been paid overtime to prepare for classes.
Complainant contended that her supervisor demanded that she take
annual leave on September 11, 2001, when other employees were given
administrative leave. The record reveals that, during training,
complainant called the trainer on September 11, 2001, and told him she
was not coming in due to illness. Complainant's supervisor stated that
all employees were sent home early that day, and complainant was not
charged for any leave.
Complainant alleged that she did not receive performance recognition.
The record reveals that nine employees in complainant's group received
performance awards in 2001 and none of the employees were seasonal
employees.
The record reveals that complainant received a written reprimand on
March 26, 2002, for failure to report to the customer service counter on
a timely basis from January 28, 2002 through March 15, 2002, and failure
to respond to the direction of her supervisor. Complainant's supervisor
stated that he recommended that she receive a reprimand because she
consistently refused to perform assignments and that she developed
a pattern of not reporting to her duty station at her scheduled time.
He noted that he had counseled other employees about their behavior, and
they had been responsive to the counseling unlike complainant who did
not follow his directions. He stated that no other employee displayed
similar conduct to complainant. The Territory Manager stated that he
signed the Letter of Reprimand because complainant repeatedly violated
the rules. He also stated that no other employee displayed conduct
similar to complainant.
Complainant's supervisor stated that complainant's performance appraisal
was not lower than her prior appraisal in 2000. He stated that she
meets her critical elements but does not exceed them. He stated that
she had difficulty with time management and did not submit work in a
timely manner. He asserted that she failed to perform tasks as scheduled
and did not work cooperatively or interact well with her co-workers,
managers or other employees.
After a careful review of the record, the Commission finds that the
issuance of a decision without a hearing was appropriate, as no genuine
dispute of material fact exists. Complainant has failed to rebut the
agency's explanations for its actions with evidence which a reasonable
fact finder could use to support a finding that the agency violated
Title VII. Accordingly, the agency's final order is hereby AFFIRMED.
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:
August 5, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations