01a40559r
08-02-2005
Annette L. Chandler, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Annette L. Chandler v. Federal Deposit Insurance Corporation
01A40559
August 2, 2005
.
Annette L. Chandler,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A40559
Agency Nos. FDICEO 98-85, 98-0176, 99-0042, 99-0084, 01-0052, 03-0003
DECISION
Complainant timely initiated an appeal from the agency's final agency
decision (FAD) concerning her equal employment opportunity (EEO) complaint
of unlawful 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 accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that complainant, an Investigative Specialist,
GG-301-1111 at the agency's Office of Inspector General (OIG) in
Washington, D.C., filed formal EEO complaints, alleging that the agency
discriminated against her on the bases of race/color (African-American),
sex (female), and in reprisal for prior EEO activity when:
1. On May 6, 1998, the agency denied complainant an upgrade of her
CG-301 Investigative Specialist position from grade 11 to grade 12;<1>
1A. In 1997, complainant could have been assigned to one of the following
positions: Criminal Investigator, CG-1811-13 and Senior Criminal
Investigator, CG-1811-14, but was informed that no vacancies existed;
1B. In October 1997, complainant's position description was revised and
complainant's duty to maintain the Office of Inspector General hotline
was removed;
1C. On May 19, 1998, complainant received a Star Award of $300.00, which
was less than awards received by employees outside of complainant's
protected classes who did similar work;
2A. In late 1998, complainant was denied a promotion based on the results
of a May 1998 desk audit. Similar desk audits were not required to
promote employees outside of complainant's protected classes. Also,
complainant was denied a copy of the May 1998 audit report;
2B. Since September 1996, complainant has been assigned to the Financial
Crimes Enforcement Network (FINCEN), where she is required to track
court-ordered restitutions and maintain OIG inventory equipment without
compensation for her additional duties;
2C. On or about August 27, 1998, complainant's position title was
changed from Investigations Specialist, CG-301-11, to Investigative
Support Specialist, CG-301-11, with no promotion potential;
2D. On August 27, 1998, complainant was denied access to information
regarding her April 13, 1994 desk audit and other pertinent files;
2E. Complainant's first-line supervisor sent her an email containing
unjustified criticisms of a job assignment complainant was performing.
Her supervisor also overscrutinized her work and work habits and set
tight deadlines;
2F. Complainant's 1998 performance appraisal rating for the evaluation
period of October 1997 through August 1998 was unjustly lowered to a
2.6 numeric rating from a 2.65 numeric rating in 1997, and complainant's
�job initiative� rating was also lowered; and
2G. Complainant's Performance Management Program rating did not
accurately reflect her performance during the rating period August 1998
through August 1999.
Additionally, complainant alleged that the agency retaliated against
her for previous EEO activity when:
In December 1998, she did not receive a Special Act Award in recognition
for the work performed in BestBank; and
The agency failed to give complainant a Special Act Award for her
contribution to the Investigative Data System (IDS).<2>
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested the agency issue a FAD on her
complaints.<3> The agency dismissed claims 1A - 1C for untimely EEO
Counselor contact. The agency further dismissed claims 2C, 2D, 2E, and
ii for failure to state a claim. The agency also found no discrimination
with respect to claims 1, 2A, 2B, 2F, 2G, and i. On appeal, complainant
restates arguments presented during the investigation and the agency
requests that we affirm its FAD.
As a preliminary matter, we note that we review the decision
on an appeal from a final agency decision de novo. 29 C.F.R. �
1614.405(a). Accordingly, we have carefully reviewed the entire record
before us in our attempt to discern whether a preponderance of the
evidence warrants a modification of the agency's ruling. See 29 C.F.R. �
1614.405(a).
Claims 1A - 1C
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The alleged events in claims 1A - 1C occurred from 1997 through May
19, 1998. The record reveals complainant did not initiate Counselor
contact until August 25, 1998, well beyond forty-five days after the
alleged events occurred. Complainant has presented no argument that
would warrant a waiver of the applicable time limits. Consequently,
we find that claims 1A - 1C were properly dismissed for untimely EEO
Counselor contact.
Claims 1, 2A - 2G, i, and ii
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case 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).
Complainant alleged that she first approached her supervisor about
a change in her job series, title, and position in June 1997, but he
denied her request. Complainant contends that she has worked at a CG-12
level but has not been promoted to reflect the accretion of duties.
She cites her work in the FINCEN as evidence of her entitlement to have
her position upgraded. In response, complainant's supervisor stated
that management instructed complainant to identify the duties she
was performing. The supervisor stated that in May 1998, complainant
approached the Office of Investigations and requested a desk audit of
her position. The desk audit was conducted by an independent, outside
contractor in July 1998 and concluded that a grade increase was not
warranted for complainant's position. The audit also concluded that
complainant's position should be changed from Investigative Specialist
to Investigative Support Specialist. The supervisor stated that he gave
copies of the audit report to complainant on August 25, 1998, and again
on September 16, 1998. The supervisor further stated that complainant's
FINCEN duties were not an accretion of duties, but were merely the
performance of duties consistent with her CG-11 position description.
Complainant also contends that she was denied access to information
regarding her April 13, 1994 desk audit and other pertinent files.
Her supervisor responded that when complainant requested these files
kept by her former supervisor, he advised her that because the former
supervisor had maintained these files, he wanted to discuss their release
with him. He further stated that he contacted the agency's Office of
Inspector General (OIG), which advised him to tell complainant to make
a FOIA request to view the contents of these old files. �Based on this
advice, Complainant's request to review the file was declined and [an
OIG attorney] sent the Complainant an email that repeated the advice
given to me,� the supervisor stated.
Complainant also objected to her performance ratings in 1998 and 1999.
Complainant received a numerical performance rating of 2.65 in 1997 and
2.6 in 1998. Her rating for the �initiative� job element dropped from
3 in 1997 to 2 in 1998. Complainant also received an overall rating
of 2.6 in 1999. Complainant's supervisor stated that complainant's
ratings were based on her observation of complainant's performance
on those particular years and placed her in the �superior� category.
The supervisor noted that complainant's ratings for each year should not
be viewed in a continuum that evaluates a particular year's performance
based on a comparison with previous years' evaluations.
Complainant was given the assignment of providing background information
on individuals and firms associated with BestBank. Complainant's
supervisor stated that he did not recommend complainant for an award
because the work she performed did not go beyond her required duties.
He stated that while other workers on the BestBank investigation
received awards, they were not supervised by him. Regarding claim ii,
complainant's supervisor stated that he gave complainant a $500.00
Special Act Award in July 1999 for work on IDS.
Finally regarding claim 2E, complainant contended that in response to
an email from an employee requesting instructions from her regarding how
to use a new automated inventory tracking system, she �jokingly replied�
that she was �in the dark� about the matter. Although complainant later
supplied the information requested, the employee sought the information
from another employee, who contacted complainant's supervisor about
complainant's response to the inquiry. Complainant alleged that his
supervisor's responding email criticized her knowledge of the data base,
accused her of failing to complete another assignment in a timely manner,
and of failing to provide him with a document. Complainant claimed
that the email portrayed her as �stupid and inadequate.� In response,
complainant's supervisor stated that he did not take complainant's �in
the dark� statement as a joke nor did he think other employees viewed
the comment as a mere joke.
Upon review, we first find that claim 2E fails to state a claim because
this matter does not involve sufficient harm or loss to the conditions,
privileges, or terms of complainant's employment to render her aggrieved
under EEO Regulations.<0> However, we find that the agency improperly
dismissed claims 1, 2C, 2D, ii, and part of claim 2A for failure to state
a claim based upon the merits of these particular claims instead of a
procedural analysis. Therefore, we will address the merits of these
claims in this decision.
We first find that complainant failed to establish prima facie cases of
race/color or sex discrimination for any of the claims contained in her
complaint. Complainant contends that two White females were promoted.
However, these comparatives are not similarly situated to complainant
because they hold different job titles, had different supervisors,
and were in different job series than complainant. We conclude
that complainant failed to present any other evidence from which an
inference of race/color or sex discrimination could be made. Moreover,
we find that the agency presented legitimate, non-discriminatory reasons
for its actions for claims 1, 2A - 2G, i and ii, as detailed above.
We find that complainant failed to present any persuasive evidence
that the proferred reasons were pretext for unlawful discrimination
or retaliation. Consequently, we determine that the agency properly
found no discrimination or retaliation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's FAD.
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
__August 2, 2005________________
Date
1We note that claim 1 was formerly part of a class action in federal
district court, but complainant opted out of the class to pursue this
matter individually pursuant to a consent decree that allowed members
of the class to �opt out.�
2We note that in the interest of clarity, we mostly preserved the agency's
numerical identification of complainant's claims in this decision.
3Complainant initially requested a hearing with an Administrative Judge
(AJ) for some of the matters contained in this consolidated complaint,
but later withdrew this request.
0 4The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides,
in relevant part, that an agency shall dismiss a complaint that fails
to state a claim. The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).