0120063429
10-23-2007
Tonya R. Williams, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Tonya R. Williams,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01200634291
Hearing No. 280-2006-00040X
Agency No. TD042602
DECISION
On May 17, 2006, complainant filed an appeal from the agency's April 17,
2006 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 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 decision.
At the time of events giving rise to this complaint, complainant worked as
a Supervisory Customer Service Representative in Overland Park, Kansas.
Complainant filed a formal EEO complaint on September 1, 2004, alleging
that she was harassed in reprisal for prior protected EEO activity when
on July 7, 2004, management issued her a negative mid-year appraisal
regarding her performance in the critical elements of Leadership,
Employee Satisfaction and Business Results, and, thereafter, on July
14, 2004, management issued complainant a 60-day Opportunity To Improve
(OTI) letter related to her mid-year appraisal.2
At the conclusion of the investigation, complainant was provided 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 but following her failure to respond to the AJ's show cause
order, dated March 2 2006, the AJ remanded the complaint to the agency
for the issuance of a final decision. The agency issued a final decision
pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant failed
to prove that she was subjected to discrimination as alleged.
The FAD found that assuming, arguendo, complainant established a prima
facie case of reprisal discrimination, the agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the FAD found that complainant's former supervisor (S1) stated that
complainant was given a negative mid-year appraisal because she failed to
develop a leadership plan or to complete the required minimum number of
employee reviews, and, as such, she did not achieve all of the commitment
goals as outlined in her Management Performance Agreement. The FAD
also found that S1 stated that complainant was issued the OTI letter
as a result of the performance deficiencies outlined in her mid-year
appraisal. The FAD concluded that complainant failed to show that these
articulated reasons were a pretext for unlawful reprisal discrimination.
Complainant makes no arguments on appeal.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 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
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).
She must generally establish a prima facie case by demonstrating that
she 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).
Here, we find that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The record reflects that on January 7,
2004, complainant signed a Manager Performance Agreement (MPA) which
set out the "critical actions, objectives, and/or results [she was]
expected to accomplish during the upcoming evaluation year." (Report of
Investigation, Attachment 1). Among the objectives included in the MPA
was the development of a Leadership Action Plan, and the completion of
at least two evaluative and two non-evaluative reviews for each of her
subordinate employees each month. Id. In his affidavit testimony,
S1 stated that complainant failed to complete either of those goals, and
that she also failed several other goals set out in her MPA, including
the management of her aged inventory. (R.O.I., Attachment 5). S1 also
stated that as the result of these deficiencies in her performance,
she was rated as not successful in her mid-year appraisal. Id.
With respect to the OTI letter, S1 stated that because complainant was
failing in more than one performance plan responsibility, he was directed
by his manager (M1) to draft the letter. Id. In her affidavit
testimony, M1 stated that "whenever an employee's performance changes
that could result in a lowered evaluation, the employee is provided
an opportunity to improve their performance." (R.O.I., Attachment 6).
M1 further stated that because complainant was not meeting certain
requirements of her performance plan, the OTI letter was issued. Id.
We find that complainant failed to proffer any evidence to show that these
articulated reasons are a pretext for unlawful reprisal discrimination.
Further, insofar as complainant contends that the incidents of which
she complained constitute harassment based upon her prior protected
EEO activity, the Commission finds that since she failed to refute the
legitimate, nondiscriminatory reasons proffered by the agency for its
actions, she also failed to establish that such actions were taken on
the basis of reprisal. Accordingly, we find that complainant failed to
establish that she was subjected to unlawful harassment. See Bennett
v. Department of the Navy, EEOC Request No. 05980746 (September 19,
2000); Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998). Accordingly, we affirm the agency's final decision.
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
October 23, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 In her formal complaint, complainant also alleged that the agency
discriminated against her when on February 3, 2004, she received negative
quarterly feedback and her supervisor disclosed her performance concerns
to complainant's peers. On January 4, 2005, complainant withdrew these
additional issues.
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0120063429
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063429