0120111860
12-19-2012
Nannette F. Buckner, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Nannette F. Buckner,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120111860
Hearing No. 430-2009-00125X
Agency No. IRS 08-0514-F
DECISION
Complainant filed an appeal from the Agency's January 12, 2011 Final Order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. 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 Revenue Officer at the Agency's Small Business, Self Employed (SBSE) facility in Raleigh, North Carolina. On July 10, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (54), sex (female), and in reprisal1 for prior protected EEO activity when:
1. On April 10, 2008, Complainant's new group manager, M1, referred to her as the "elderly lady";
2. On April 11, 2008, Complainant was not selected for a position of Revenue Officer, GS-1169-13, under vacancy announcement number 50-20-OGBI56R8;
3. On May 28, 2008, M1 refused to approve work submitted, unless Complainant completed and submitted additional work. After explaining why she thought the additional work was inappropriate and a possible 1203 violation, M1 approved the work, but stated that he would not approve such cases in the future without additional work;
4. On May 28, 2008, M1 made the comment that he would consider providing Complainant training in "Offers-in-Compromise" depending on how much longer she intended to work;
5. On June 23, 2008, the Area Director (D1) announced during a Town Hall Meeting that he would be meeting with Complainant on a priority basis; and
6. On June 23, 2008, after declining to meet with D1, M1 approached Complainant and informed her twice that D1 was waiting to meet with her.
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 (AJ). Complainant requested a hearing and the AJ held a hearing on February 16 and 17, 2010, and April 14, 2010. The AJ issued a decision on January 5, 2011.
In her Decision, the AJ found that regarding claims (1) and (3), that Complainant was not harmed by the isolated remark and the concern expressed by M1 over her work performance. The AJ found that these claims alone, or viewed together with the remaining claims of Complainant's complaint did not rise to the level of harassment. The AJ also found that Complainant did not receive any discipline as a result of claim (3), nor was her performance appraisal impacted thereby. The AJ observed that other employees, also over 40 years old, but significantly younger than Complainant, were subjected to the same "obnoxious," but not discriminatory conduct from M1 as Complainant was subjected.
Regarding claim (4), the AJ found no evidence that Complainant was denied training for "offers-in-compromise" and found no evidence that M1's comments were prompted by Complainant's age, as opposed to his knowledge that Complainant desired to leave M1's group.
With respect to claims (5) and (6), the AJ found on April 9, 2008, Complainant contacted her Union President when Complainant experienced what she believed was inappropriate conduct2 during the selection process identified in claim (2). The Union President in turn, contacted D1 regarding Complainant's allegations. On April 28, 2008, Complainant initiated the EEO complaints process. The AJ found D1 stated that his desire to meet with Complainant in June 2008, was prompted by his conversations with the Union President and not by Complainant's EEO activity. The AJ found Complainant did not establish that more likely than not D1's intention was to intimidate or harass Complainant.
Regarding claim (2), the AJ found that Complainant applied for the position of Revenue Officer, GS-13 and was among the best qualified for the position. The AJ noted that Complainant and the other top candidates were interviewed by a three-member panel and a candidate, C1, was selected. C1, the AJ observed, was 46 years old at the time of the selection, while Complainant was 54 years old. The AJ found that while Complainant was well qualified for the position, her qualifications were not plainly superior to those possessed by C1 and that the panel members all rated C1 as the top candidate. The AJ found that based upon the panel's recommendation, C1 was selected by M2. The AJ found that Complainant was unable to prove that C1 was selected based on discrimination.
Overall, the AJ found the legitimate, non-discriminatory reasons put forth by the Agency to be persuasive and that Complainant did not show that the Agency's reasons for its actions were a pretext and that discrimination was the real reason for any of the actions described in Complainant's complaint.
The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
On appeal, Complainant states that the AJ improperly failed to recuse herself after commenting prior to settlement discussions that the settlement value of Complainant's complaint was not $300,000 or even $100,000. Further, Complainant states that the AJ issued her order on January 27, 2011, regarding a number of motions raised during the processing of Complainant's complaint. Complainant appeals the rulings in that order as well as the Agency's Final Order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ 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 AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
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). Complainant must initially establish a prima facie case by demonstrating that he or she 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Although the initial inquiry of discrimination in a discrimination case usually focuses on whether Complainant has established a prima facie case, following this order of analysis is unnecessary when the agency has articulated a legitimate, nondiscriminatory reason for its actions. See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from whether Complainant has established a prima facie case to whether she has demonstrated by preponderance of the evidence that the Agency's reasons for its actions merely were a pretext for discrimination. Id.; see also, U.S Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. � 1614.109 et seq; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 7, Section III(D) (November 9, 1999). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Department of Justice, EEOC Request No. 05A30373 (April 21, 2005); Rountree v. Department of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001).
Specifically, our regulations provide that where a party fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying parry. Id. An AJ must first issue a Notice to Show Cause to the non-complying party. EEO MD-110, Chapter 7, Section III(D), fn. 6; see DaCosta v. Department of Education, EEOC Appeal No. 01995992 (February 25, 2000).
We find the AJ properly denied Complainant's motion for recusal of the AJ based upon directions and comments the AJ provided to the parties in an effort to facilitate settlement negotiations at the outset of the hearing. We find that such remarks as to the prospective value of the damages to be awarded should a finding of discrimination issue, and the general comments concerning the incidents of Complainant's harassment claims, were not improper given the status of the case (post-investigation and after the parties held a pre-trial conference).
We further observe that the AJ issued an order on January 27, 2011, pursuant to Complainant's request, clarifying the status of Complainant's motions (denied) following the issuance of her decision. Therein, the AJ denied Complainant's request for sanctions against the Agency for, among other matters, its failure to abide by the regulatory time limits for completion of the investigation of the complaint, and against the Commission for failure to conduct the hearing in a timely manner.
Regarding Complainant's various motions to amend her complaint to include additional incidents of harassment, the record shows that the AJ permitted Complainant to proceed with the presentation of her case, including evidence regarding additional incidents that involved the same identified management officials (Complainant's manager (M1) and M1's supervisor (M2)). The AJ found no discriminatory harassment was proven by Complainant. We note that Complainant described her amendments as a continuation of the discriminatory harassment described in her complaint. We find the AJ's Decision regarding Complainant's overall claim of harassment encompassed the additional incidents and that those incidents were included in the presentation of Complainant's case in chief in both the examination and cross-examination of witnesses who testified at the hearing in this case. We find the AJ's Decision ultimately includes Complainant's original claim of harassment as augmented by additional incidents amended to the complaint in the course of the hearing.
With respect to the AJ's Order denying Complainant's request for sanctions regarding the completion of the Agency's investigation, the record reveals the following sequence of events. Complainant filed her complaint on July 10, 2008. By letter dated February 12, 2009, the Agency informed the Commission's Supervisory AJ that the Agency had not yet completed its investigation, but the Agency forwarded to the Hearings Unit of the Commission the administrative materials in its possession to date. The Agency completed its investigation and submitted the report of investigation to the Hearings Unit on March 31, 2009. We note the Agency's investigation was completed less than three months after the Agency was ordered by the Supervisory AJ to produce the complaint file and report of investigation. We find the AJ did not abuse her discretion when she denied Complainant's request for sanctions in view of the Agency's failure to complete its investigation within 180 days of the filing of Complainant's complaint. We find that the hearing on Complainant's complaint commenced in less than one year from the time the Agency submitted the report of investigation to the Commission's Hearing's Unit. We decline to disturb the AJ's discretion in her denial of Complainant's request for sanctions and other relief.
In the instant case we find the AJ's Decision is supported by substantial evidence and we decline to disturb the AJ's finding that Complainant failed to show that the Agency's reasons for its actions were a pretext to mask discrimination on any basis. Specifically, we find that with regard to claims (1), (3), (4), (5), and (6), together with Complainant's overall claim of harassment, that Complainant has not described incidents that were either sufficiently severe or pervasive so as to alter the terms and conditions of Complainant's employment. We find the stray "elderly lady" remark to have been descriptive, as M1 did not know Complainant at that time, rather than an indication of age or sex discrimination or retaliation for protected EEO activity. We note that both female and male employees described M1's management style as abrasive. We find that M1's management deficiencies as described by Complainant and both male and female witnesses, prompted M2 to facilitate M1's reassignment from Complainant's unit in January 2009. We further find, as did the AJ, no evidence that Complainant requested and was denied training, and no evidence that M1's criticism of Complainant's performance resulted in any diminution of her performance appraisal or other change in her work assignments. We find the evidence does not show that more likely than not M1's actions were motivated by Complainant's age, sex, or prior EEO activity.
We find no dispute that Complainant did not know the purpose of D1's desire to meet with her in June 2008. We decline to disturb the AJ's determination that D1 stated convincingly that: his request to meet with Complainant in June 2008, was for the purpose of apologizing for the conduct of H1 during the selection process; that he was not aware of Complainant's EEO activity at that time; and that his purpose was not to retaliate, harass, or intimidate Complainant in connection with the exercise of her rights to be treated fairly in the selection process.
Regarding claim (2), we concur with the AJ that nothing in the evidence indicates that Complainant's age or sex or retaliation for protected EEO activity played any role in the selection process. We note, as did the AJ, that both Complainant and the selectee are female. Further, at the outset of the interview process, Complainant was among the top qualified candidates for the identified position and Complainant's interview itself went well. We find no evidence to dispute the statements of the panel members explaining that the selectee was considered the superior candidate based upon her expressed enthusiasm and drive at the interview. We decline to substitute our judgment for the Agency's judgment by acceding to Complainant's belief that enthusiasm or drive was an improper basis upon which to make a decision once Complainant and the selectee both demonstrated the required technical knowledge of the position and both achieved a successful interview.
We do not find that Complainant has shown that the Agency's stated reasons for its selection were a pretext to mask discrimination; nor has Complainant established that her age, sex, or prior EEO activity motivated the Agency's actions. Finally, we find substantial evidence supports a finding of no discriminatory harassment.
CONCLUSION
We therefore AFFIRM the Agency's Final Order finding no discrimination.
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
December 19, 2012
__________________
Date
1 The record shows that Complainant withdrew the basis of disability prior to the hearing held in this matter.
2 Complainant and other candidates were all forced to leave their personal items (valuables, handbags, and briefcases) in an unsecured area, outside of the room where they completed a portion of the examination process. Complainant objected to doing so, but the employee conducting the examination process (H1) did not allow for any exceptions.
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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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