0220100005
01-06-2012
Agency.
Evonne T. McDaniel,
Grievant,
v.
Vincent K. Snowbarger,
Acting Executive Director,
Pension Benefit Guaranty Corporation,
Agency.
Appeal No. 0220100005
DECISION
Grievant filed a timely appeal with this Commission from the Agency’s
March 26, 2010, Step 3 decision concerning her grievance alleging unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission VACATES the Agency’s Step 3 decision.
BACKGROUND
At the time of the events giving rise to this complaint, Grievant
worked as a GS-13 Management and Program Analyst in the Retirement
Services Division at the Agency’s Headquarters in Washington, D.C.
In November 2009, Grievant received her FY 2009 performance evaluation
with an overall summary rating of Meets Expectations.1 On December 18,
2009, Grievant filed a Step 1 grievance with her supervisor indicating
that she should have received an Outstanding rating along with a
corresponding performance award. Grievant alleged, in pertinent part,
that her rating was lowered “as a result of discrimination based on age
and retaliation for ongoing EEO activity,” and she listed the reasons
she felt her work performance justified an overall rating of Outstanding.
Grievant did not receive a response from her supervisor and considered
her grievance denied at Step 1. On January 13, 2010, Grievant filed
a Step 2 grievance with her Department Director (Director). The Step
2 grievance adopted and incorporated by reference Grievant’s Step 1
grievance. On February 9, 2010, the Director issued a Step 2 decision
finding that Grievant’s work performance justified a higher rating.
The decision modified Grievant’s overall rating to Exceeds Expectations
and awarded her a corresponding performance award. The Step 2 decision
found no evidence that Grievant’s rating was lowered based on age
discrimination and in retaliation for prior protected EEO activity.
On February 22, 2010, Grievant filed a Step 3 grievance alleging that
her work performance merited a rating of Outstanding along with a
corresponding performance award. Grievant reiterated that she felt
her rating was lowered as a result of discrimination based on age and
in retaliation for her prior protected EEO activity and listed the
reasons why she should have received an overall rating of Outstanding.
In response to the Step 2 decision, Grievant objected to the Director’s
failure to issue a new performance evaluation addressing her actual
performance and accomplishments. Grievant also objected to the
Director’s failure to discuss “the discriminatory and unlawful
motives of rating officials.”
On March 26, 2010, the Chief Operating Officer (COO) issued a Step 3
decision denying the grievance. The COO noted that he found no reason
to modify the Director’s Step 2 decision. The Step 3 decision did
not explicitly address Grievant’s discrimination claims.
CONTENTIONS ON APPEAL
In response to Grievant’s appeal, the Agency requests that the
Commission dismiss the appeal “to allow the [A]gency to rescind and
re-issue its response to [Grievant’s] Step 3 Grievance.” The Agency
argues that its prior decisions addressed Grievant’s dissatisfaction
with her performance appraisal but failed to consider her discrimination
claims. The Agency urges the Commission to provide the Agency with
the opportunity to rescind its Step 3 decision, conduct a supplemental
fact finding inquiry regarding Grievant’s discrimination claims,
and re-issue a Step 3 decision addressing these claims.
On appeal, through her representative, Grievant argues that the Agency’s
failure to give her an overall rating of Outstanding on her FY 2009
performance evaluation and change the evaluation narrative to reflect
her actual contributions and accomplishments was due to her age and in
retaliation for her prior protected EEO activity. She further argues that
“to the extent that there is any evidence of nondiscriminatory motives,
they are not sufficient to overcome the discriminatory motives” and that
“the Agency cannot prove that in the absence of discriminatory motives,
it would have taken the same action.” Grievant urges the Commission
to order the Agency to change her FY 2009 rating to Outstanding; provide
her with a corresponding performance award; issue a new appraisal with
an updated narrative; provide any responsible management officials
with EEO training; provide Grievant with an apology; post a notice;
investigate her entitlement to damages; and provide any other relief
that is just and proper. With respect to the Agency’s request for a
dismissal, Grievant accuses the Agency of attempting to improperly delay
the appeals process and argues that there is sufficient evidence in the
record for the Commission to render a decision.
ANALYSIS AND FINDINGS
EEOC regulation 29 C.F.R. § 1614.401(d) provides that a grievant
may appeal to the Commission from a final decision of the agency,
the arbitrator, or the Federal Labor Relations Authority (FLRA) on a
grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised.
The Commission will only review that portion of the decision which
pertains to the grievant’s employment discrimination claim, as it
does not have jurisdiction over any alleged violations of a Collective
Bargaining Agreement. See 29 C.F.R. § 1614.301(a).
Upon review, the Commission finds that the record is insufficient to
allow a determination on the merits of Grievant’s discrimination
claims. The grievance file transmitted by the Agency to the Commission
contains copies of Grievant’s Step 1 grievance, the Agency’s
Step 2 decision, Grievant’s Step 3 grievance, the Agency’s Step 3
decision, and documentation establishing that Grievant was given a FY
2009 performance award. However, the file does not contain a copy of
the Collective Bargaining Agreement between the Agency and the Union
or any evidence, such as affidavits or other relevant documentation,
addressing Grievant’s discrimination claims. Given this lack of
evidence, we are unable to render a determination on the merits of
Grievant’s discrimination allegations.
Accordingly, the agency's final decision is VACATED. The matter is
REMANDED to the Agency for further processing in accordance with the
ORDER below.
ORDER
The agency is ORDERED to take the following action:
The Agency shall supplement the record with evidence concerning
Grievant’s claim that she was discriminated against based on age and
in retaliation for prior protected activity with respect to her FY 2009
performance rating. The additional evidence shall include:
1. All relevant paperwork related to Grievant’s grievance, including
full copies of the original grievance, all documentation prepared by any
party to the grievance and submitted in connection with the grievance
process, any statements by the Grievant in support of her grievance;
any responses to the grievance by Agency officials; any minutes taken
during the meetings regarding the grievance; and any investigative report
and documentation prepared during the course of the grievance;
2. Affidavits addressing the alleged discriminatory actions from Grievant,
the responsible Agency officials, and any other relevant witnesses; and
3. Any other relevant information and documentation regarding Grievant’s
claim that she was discriminated against when she was given an FY 2009
overall rating of Meets Expectations.
Within sixty (60) calendar days of the date this decision becomes final,
the Agency shall issue a new Step 3 grievance decision addressing
Grievant’s discrimination claims and providing Grievant with appeal
rights to the Commission.
A copy of the agency's new Step 3 grievance decision must be sent to
the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency’s report must contain supporting documentation,
and the Agency must send a copy of all submissions to the grievant.
If the Agency does not comply with the Commission’s order, the grievant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The grievant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an
administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the grievant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Grievant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Grievant 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).
GRIEVANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your grievance. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your grievance with the Agency, or filed your appeal with the
Commission. 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.
Filing a civil action will terminate the administrative processing of
your grievance.
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
January 6, 2012
Date
1 The Agency’s rating system allowed for five possible rating levels,
including (from the highest to the lowest possible rating): Outstanding,
Exceeds Expectations, Meets Expectations, Below Expectations, and
Unsatisfactory.
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02-2010-0005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0220100005