0120132350
10-16-2014
Complainant v. Thomas E. Perez, Secretary, Department of Labor (Employment and Training Administration), Agency.
Complainant
v.
Thomas E. Perez,
Secretary,
Department of Labor
(Employment and Training Administration),
Agency.
Appeal No. 0120132350
Agency No. CRC-11-04-035
DECISION
Complainant timely filed an appeal from the Agency's final decision concerning her equal employment opportunity (EEO) complaint alleging 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to establish that she was subjected to discrimination and a hostile work environment on the bases of national origin and reprisal for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Immigration Program Analyst, GS-12, at the Agency's Office of Foreign Labor Certification (OFLC), Employment and Training Administration (ETA) in Atlanta, Georgia. Report of Investigation (ROI), at 1. Complainant's new Supervisory Program Analyst (SP1) became Complainant's first-level supervisor on June 7, 2010, after Complainant was placed on her Supervised Recruitment (SR) team. Id. at 35. Complainant's former Supervisory Program Analyst (SP2) supervised Complainant from October 1, 2009, through June 6, 2010, while Complainant worked on the appeals team. Id.
On November 9, 2010, Complainant received her performance appraisal for the rating period of October 1, 2009, though September 30, 2010. Id. at 18. Therein SP1, with SP2's input, rated Complainant as "Minimally Satisfactory" for the rating period. Id. at 88. The Acting Chief of Case Resolution also signed-off on Complainant's performance rating after discussing it with SP1. Id. at 283. Thereafter, on November 16, 2010, SP1, placed Complainant on an informal Performance Improvement Plan (PIP). Complainant subsequently was released from the PIP and given full sign-off authority for SR cases on January 3, 2011. Id. at 92.
Also, on January 3, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Nigerian) and reprisal for prior protected EEO activity under Title VII1 when:
1. On November 9, 2010, SP1 rated her as "Minimally Satisfactory" on her annual performance evaluation for the rating period of October 1, 2009, to September 30, 2010; and
2. On November 16, 2010, she was placed on an informal Performance Improvement Plan for thirty days.
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. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish were pretext for discrimination. In particular, the Agency noted that, although Complainant mostly alleged discrimination by SP2, it was SP1 who actually determined the final rating for the annual performance evaluation. The Agency indicated that SP1 expressed concerns about Complainant's performance after Complainant was transferred to her team. The Agency stated that when rating Complainant, SP1, in consultation with SP2, had already found that Complainant had engaged in a pattern of unsatisfactory performance. The Agency noted that SP1 commented that Complainant required improvement regarding her accuracy of appeal determinations. The Agency noted that a certifying officer cited several inaccurate and poorly written determinations by Complainant.
With regard to claim 2, the Agency indicated that on October 12, 2010, SP1 developed an informal plan to help improve Complainant's performance, which included sorting Complainant's cases and reassigning them to her gradually to assist with her caseload. The Agency stated that after Complainant's performance improved slightly, it regressed on the informal plan. The Agency indicated that Complainant failed to return assigned cases as requested, made many incorrect case recommendations, and failed to make updates to systems and databases continuously as required. The Agency found that Complainant proffered no evidence to establish that management's actions were pretextual. The Agency noted that, although Complainant alleged that SP1 was pressured to rate her performance as unsatisfactory, such an assertion, without probative evidence, is insufficient to establish pretext.
CONTENTIONS ON APPEAL
Complainant has not filed a brief on appeal. The Agency requests that we affirm its final decision.
STANDARD OF REVIEW
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 Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-pan evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that be 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on national origin and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, SP1 explained that when she first started to address Complainant's performance on August 19, 2010, Complainant's caseload had dwindled to only one case per week. ROI, at 90. SP1 further explained that, although she was working with Complainant to help her obtain full sign-off authority, Complainant was not reviewing a sufficient number of cases and her production remained very low. Id. at 90-91. SP1 also stated that Complainant was not fully proficient in SR regulations, policies, and procedures, including reporting, tracking, and system updates. Id. SP1 further averred that when she met with Complainant on October 12, 2010, she noticed that Complainant's desk was disorganized, with documentation related to case files unsecured. Id. SP1 additionally indicated that Complainant failed to return all assigned cases each day as requested, many of her recommendations were incorrect, and she consistently failed to make required updates to databases. Id.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant stated that she speaks with a pronounced Nigerian accent, and had a pending EEO complaint against SP2 when she was issued the performance appraisal and was subsequently placed on the informal PIP. Complainant maintained that SP2 remained her supervisor for approximately eight months after she filed her discrimination complaint against her. Complainant further maintained that, during this time period, SP2 wrote reviews that denigrated her work, which portrayed her as an incompetent employee. Complainant asserted that SP1 told her that she tried to do "damage control" to what SP2 had written about her. Complainant additionally contended that SP1 was a new employee, and SP1 said that she was under pressure from management to issue her the informal PIP.
Notwithstanding Complainant's contentions above, we find that she has failed to establish that the Agency reasons were pretext for discrimination. Specifically, we note that Complainant is alleging that most, if not all, of the responsibility lies with SP2 for the discrimination with respect to her annual performance rating.2 However, the record reflects that SP1, not SP2, was the supervisor actually responsible for issuing Complainant the performance rating. According to SP1, she also felt that Complainant had not performed well during the period of time she supervised her. Further, we can find no evidence contained in the record with respect to Complainant's contention that SP1 was pressured by management in issuing either the performance appraisal or the informal PIP. We note that SP1 averred that she independently believed that Complainant's work and performance were not up to required standards. As such, we find that Complainant has failed to establish that the Agency's actions were motivated by discriminatory or retaliatory animus. We note that Complainant withdrew her hearing request, forgoing the benefit of an AJ's credibility determinations after a hearing.
Hostile Work Environment
Finally, to the extent that Complainant contends that she was subjected to a hostile work environment with respect to the matters herein, the Commission find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of harassment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). A finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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
October 16, 2014
Date
1 Complainant previously filed an EEO complaint, naming SP2 as the responsible management official (RMO).
2 In EEOC Appeal No. 0120121054 (September 11, 2014), we found that Complainant failed to establish that SP2's actions amounted to discrimination.
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0120132350
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132350