01A12908
08-15-2002
Vera J. Robinson, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Vera J. Robinson v. Department of the Treasury
01A12908
August 15, 2002
.
Vera J. Robinson,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A12908
Agency No. 99-2291
Hearing No. 330-A0-8114X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that she was discriminated against on the bases of
her race (African-American) and sex (female) in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. For the reasons which follow, we affirm the agency's final order.
Many of the facts which precipitated the filing of the instant complaint
are not in dispute. Complainant was employed by the agency as a Bankruptcy
Specialist in the Collection Division of the Special Procedures Branch
at the agency's Houston, Texas District Office. On April 21, 1998,
complainant and a coworker (coworker: White, female) attended hearings
before the United States Senate Finance Committee. When coworker returned
to Houston, the agency issued her an �Opportunity Letter� notifying her to
improve her performance or risk removal. Believing that the letter was
sent in reprisal for her testimony before the Senate Finance Committee,
coworker sought and received the intervention of the Commissioner.
The Commissioner ordered the agency's Deputy Commissioner to Houston
to investigate.
Upon returning to Houston, complainant received a Notice of Proposed
Adverse Action (30-day suspension). Through the grievance process, the
proposed suspension was reduced to a Letter of Reprimand. Believing that
the agency issued the Notice of Proposed Adverse Action in reprisal
for her appearance at the hearing before the Senate Finance Committee,
complainant sought the personal involvement of the executive head of the
agency, the Commissioner of the Internal Revenue Service (Commissioner).
The Commissioner did not become personally involved. On June 9, 1999,
complainant filed a formal complaint of discrimination with the agency
alleging that the Commissioner failed to adequately respond to her
allegation of reprisal because she is African-American and female.
Specifically, complainant alleged that:
On April 15, 1999, [coworker] was retaliated against by her managers in
the Houston District IRS. As a result, the Commissioner . . . immediately
sent the second in command . . . to Houston to review the case. The same
actions . . . were taken against me (Black Female) on April 21, 1998,
when my picture appeared in the Washington Post during the Senate Finance
Committee Hearings, however, the response to my retaliation was totally
different and to this date has not been resolved.
Individual Complaint of Employment Discrimination, Investigative Report
Page 5.
After an investigation, complainant requested a hearing before an EEOC
Administrative Judge. Before the hearing, complainant withdrew sex
as a basis of her complaint. After the hearing, the Administrative
Judge issued findings, ultimately concluding that complainant failed to
establish, by a preponderance of the evidence, that she was discriminated
against on the basis of her race. The agency issued a final order on
March 26, 2001, fully implementing the Administrative Judge's decision.
This appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
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). He
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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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 Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In this case, the agency has articulated legitimate non-discriminatory
reasons for its actions. The agency states that, unlike complainant,
coworker testified in an open session before Congress on the topic
of abuse by the agency of employees and taxpayers. The Chair of the
Senate Finance Committee specifically instructed the agency not to
retaliate against coworker on the basis of her testimony whereupon the
Commissioner instructed local management in Houston that they were not to
take retaliatory action against coworker. In the event that discipline
was necessary, the Commissioner was to approve that discipline himself.
When the agency's Houston District Office sent the Opportunity Letter to
coworker without the Commissioner's approval, the Commissioner responded
by sending the Deputy Commissioner to Houston to ascertain why his
instructions were not followed. The Commissioner testified that he
was involved in coworker's retaliation allegations only because of the
interest expressed by the Congress and because of the Houston office's
failure to comply with his specific instructions, not because of race.
At the hearing complainant produced witnesses who testified that they
believe that discrimination generally exists at the agency's Houston
District Office. However, complainant has failed to produce evidence that
the explanations given at the hearing by the Commissioner are actually
pretexts for race discrimination. The Administrative Judge found that
while complainant's discontentment with the agency was well known in the
District, it did not have the national attention coworker's testimony had
caused and complainant was not treated the same because the Commissioner
had not been instructed by the Chair of the Senate Finance Committee to
ensure that she was not retaliated against. The Administrative Judge
found the Commissioner's testimony reliable and complainant has failed
to establish that the Administrative Judge's factual findings are against
the substantial weight of the evidence.
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 final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
August 15, 2002
__________________
Date