0120121110
05-22-2012
Evelyn N. Mitchum, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Evelyn N. Mitchum,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120121110
Agency No. CRC 11-06-011
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 5, 2011 final decision 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 worked as a Human Resources Compensation Specialist, GS-9, at the Agency's Wage and Hour Division (WHD) in Dallas, Texas.
On November 1, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her in reprisal for prior EEO activity when:
1. on May 26, 2010, management informed her that she would not be awarded a within-grade increase that was due in August 2010, which she ultimately did not receive;
2. in a meeting on August 30, 2010, management suggested that she resign her position and/or that she would be put on a Performance Improvement Plan (PIP);
3. management was continually unresponsive to her inquiries regarding her performance standards, and took actions to make it difficult for her to successfully complete her work;
4. she discovered that inaccurate information was provided to appropriate management officials regarding her yearly bonus;
5. management officials were continually uncooperative regarding her use of leave for medical reasons;
6. she received an unfavorable performance appraisal for FY 2010;
7. on or around February 17, 2011, a management official(s) placed her on a PIP that she believed to be based on "untrue and incorrectly documented" information;
8. on June 27, 2011, her request for reassignment was denied by management;
9. in July 2011, management unnecessarily limited her use of flexi-time by directing her to not to stay at work "one second after 4:30[p.m.];" and
10. in July 2011, management notified her that it was making changes to her PIP documentation without informing her of the changes, and that it would make the PIP effective upon her return to the Agency on July 21, 2011.
The Agency accepted the complaint for investigation. Complainant had previously alleged that she had been harassed by management in May-June 2009 concerning her medical leave and being required to meet with her supervisors on a daily basis because they claimed her work was subpar. She reported the alleged harassment to the EEO Program Manager under the Agency's anti-harassment procedures in September 2009. The matter was investigated, resulting in a finding that there was no violation of Agency's harassment policy. Her 2009 complaint and resulting investigation form the basis of her claim that she engaged in prior protected activity for which she was being retaliated against through the actions described in her November 2010 EEO complaint at issue here.
Complainant asserted that she did not have work performance problems as alleged by management and she was placed on a PIP, received a poor rating and was denied her within grade increase and yearly bonus solely because of her supervisors malicious efforts to ruin her career. She also alleged that management failed to deal with her in a professional manner by not responding to her performance standards inquiries, barring her flexi-time schedule and failing to properly notify her of changes made to her PIP making it impossible for her to succeed. Finally, Complainant alleged that management made it difficult for her to take medical leave and denied her request for a reassignment.
Regarding claim 1, Complainant's former supervisor (FS) stated that she met with her staff members individually to discuss their performance.1 FS stated that in May 2010, she advised Complainant that her performance needed to improve and "due to [a] recent rating of record of minimally satisfactory, she would not receive within grade increase in Aug. 2010." FS stated that during the relevant time, Complainant's performance "was rated 'needs to improve' in one of three critical elements." FS stated that the denial of Complainant's within-grade increase was in accordance with the provisions of the agreement between the Agency and the union.
Regarding claim 2, the Deputy Regional Administrator, also Complainant's third-level supervisor (S3), stated that on August 30, 2010, she participated in a federal mediation meeting with Complainant and union representatives concerning her work performance and claims she was being harassed by management. However, S3 stated that she was not at liberty to discuss what occurred during the August 30, 2010 mediation. Specifically, S3 stated "any statements made by the parties or the mediator during the mediation process are not inadmissible and not discoverable for any purpose whatsoever in any pending or subsequent judicial or other proceeding."
Regarding claim 3, FS stated that around April 2010, she received an email from Complainant stating that she had not received a copy of her performance standards and "when I followed up, I determined that none of the analysts received a copy. I requested [a named Administrative Assistant] . . . to provide copies to each analyst." FS further stated that she was not aware of any other inquires by Complainant concerning her performance standards. FS stated that the standards "were new + significantly revised therefore, I spent some time with each analyst, including [Complainant], individually in March 2010 to explain the new standards."
S3 stated that during 2010, Complainant "sent almost 100 emails on various subjects. I have included all the emails with this submission. I do not recall any inquiry regarding her performance standard. As the third line supervisor, those inquiries should have been directed to her immediate supervisor."
Regarding claim 4, S3 stated that Complainant did not discuss with her any concerns regarding inaccurate information being provided to management officials regarding her yearly bonus.
Regarding claim 5, FS stated that during the relevant time, she was responsible for approving Complainant's leave for medical reasons. FS stated that she was cooperative when Complainant requested medical leave in 2010, but counseled Complainant "on numerous occasions on the requirement to request leave in advance when practicable [and] to contact me via email, work phone, or blackberry phone to request leave." The Regional Administrator stated that after Complainant exhausted her sick leave balance, she authorized 128 hours of advanced sick leave for Complainant to use in June and July 2010. However, when Complainant requested additional advanced sick leave, she denied the request because she determined Complainant's advanced sick leave balance was already too high. She noted that Complainant also received paid leave through the leave bank donation program.
Regarding claims 6 and 7, FS stated that she was Complainant's rating official for the FY 2010. S1, who replaced FS as Complainant's supervisor, stated while all WHD employees, including Complainant, were placed on performance standards in March 2010, Complainant did not receive a performance appraisal for FY 2010 "due to her failure to meet 2 critical elements of her performance standards." Specifically, FS stated that during the period of March 12, 2010 through May 31, 2010, Complainant submitted 147 WD-10s and "of these, 63% were incorrect classification [and] 76% were incorrect wages [and] fringe benefits." FS stated that at the same time, Complainant was absent from the office from mid-June 2010 to October 2010 and "did not submit additional WD-10s." FS stated that as a result, she placed Complainant on a PIP "to allow her an opportunity to perform satisfactorily."
FS stated that due to the difficulties Complainant "had in understanding training provided by national office staff June 9-10, 2009 [and] performing her duties, the lead wage analyst [and] I met with [Complainant] 2x day to review her work [and] provide very detailed refresher training [and] instructions to perform DBRA survey work." FS further stated that the training sessions "last until September 2, 2009, when the next phase of the survey began. The nature of the work for the next phase of the survey did not warrant meetings." S1 stated that at that time Complainant's work was not criticized daily during the meetings; rather her work was reviewed in addition to training and assistance in order to allow her to complete her assignments correctly and timely.
The Regional Wage Specialist, also Complainant's current supervisor (S1), stated that in 2010, she worked as a Senior Wage Analyst. As part of her Senior Wage Analyst duties, S1 reviewed Complainant's work assignments. S1 stated that she returned Complainant's assignments approximately eleven times for further clarification and corrections.
S3 stated that Complainant was not placed on PIP on or around February 17, 2011. Specifically, S3 stated that Complainant was placed on a PIP in November 2010 by FS. S3 further stated that employees are placed in a PIP "when they are not meeting their standards."
Regarding claim 8, S1 stated that she denied Complainant's request to transfer out of the WHD "based on an assessment conducted by the Federal Occupational Health Service (FOH)." Specifically, S1 stated that Complainant's physicians did not respond to repeated attempts by FOH physicians to discuss Complainant's medical condition and provide requisite information. Moreover, the Agency witnesses indicated that no vacant position was located for which Complainant was qualified.
Regarding claim 9, S1 stated that during the relevant time Complainant worked a flexi-time schedule. S1 further stated that in July 2011, she advised Complainant "on her return to work (7/21/11) that the PIP was still in effect and that her hours of duty were from 8:00 am - 4:30 pm. The reason, as outlined in the PIP, for placing her on a set schedule is to ensure that supervision is available to provide her guidance to succeed on her PIP." S1 stated that on two occasions, Complainant stayed past her departure time to work on her cases. S1 stated that because part of the PIP involves Complainant "being in the office when I am in the office to allow me to provide her with guidance and feedback on her performance while she remains on the PIP. Accordingly, I have instructed her not to work past 4:30 pm as I do not work past 4:30 pm."
With respect to Complainant's allegation that S1 acted unprofessionally towards her, S1 denied it. Specifically, S1 stated "no, I did not yell or act unprofessionally with Complainant."
Regarding claim 10, S1 stated that in July 2011 she did not make any changes to Complainant's PIP. S1 stated that Complainant "was advised upon her return to work (7/21/11) that the PIP was still in effect and adjustments in the duration of the PIP would be made because she had been out for an extended period and I would be in travel status for 3 weeks. Accordingly, the duration of the PIP would extend to allow her the full opportunity to undertake improvements in her job performance."
After the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on December 5, 2011, pursuant to 29 C.F.R. � 1614.110(b).
In its December 5, 2011 final decision, the Agency found no discrimination. While the Agency determined that Complainant established a prima facie case of reprisal discrimination, it found that this initial inference of retaliation was successfully rebutted by management's articulation of legitimate, nondiscriminatory reasons for its actions, which Complainant failed to show were a pretext for retaliation.
The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful retaliation. Beyond her bare assertions, Complainant offered no evidence that management acted with a retaliatory animus.
Complainant, on appeal, argues that the report of investigation was inadequate. However, the Commission determines that the investigation was properly conducted, and that Complainant provided no persuasive arguments indicating any improprieties in the Agency's findings.
We also note that on appeal Complainant has alleged that she continues to be subjected to ongoing harassment from management. If she wishes to pursue matters that occurred after the investigation into the complaint at issue in this appeal, she needs to contact an Agency EEO counselor to file a new complaint.
After a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that 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
May 22, 2012
__________________
Date
1 The record reflects that FS's last day with the Agency was January 28, 2011.
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Office of Federal Operations
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