0120080241
03-25-2010
Betty J. Ross, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Betty J. Ross,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 0120080241
Agency No. 06WESAMCR001
DECISION
On October 11, 2007, complainant filed an appeal from the agency's
September 13, 2007 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.
ISSUE PRESENTED
Whether the agency discriminated against complainant on the bases of
gender (female), disability (carpal tunnel), and in reprisal for prior
protected EEO activity.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Teller, GS-0530-04, at the Tinker Air Force Base (AFB)
Commissary, Tinker AFB, Oklahoma. Complainant's job duties consisted of
controlling and accounting for all funds received and deposited daily
in the commissary store operations; as well as processing funds in the
form of cash, checks, redeemable coupons, food stamps, and credit slips
from the cashiers assigned to the Customer Service Department.
According to the record, complainant was originally diagnosed with
"tendonitis right hand, right cervical/trapezes muscle strain" on
September 5, 2001. On December 9, 2004, complainant was diagnosed with
"aggravation of carpal tunnel syndrome (CTS)/tendonitis right thumb,
right cervical trapezes muscle pain."
Complainant underwent CTS surgery in early 2005, and was released to
return to work, with restrictions/limited duty, on March 25, 2005.
Complainant's limited-duty position consisted of inspecting the
identifications of customers entering the Commissary. Complainant
continued in this light-duty capacity for approximately 40-50 percent
of the rating evaluation period until she returned to her regular duties
as a Teller, GS-530-04, on July 17, 2005.
Complainant's immediate supervisor, S1, supervised complainant and
was responsible for assigning her performance evaluation rating. The
ratings were reviewed by complainant's second level supervisor, (S2).
S2 left the agency's Tinker AFB facility on July 25, 2005. The record
shows that S1 was aware of complainant's CTS from the time that her
employment with the Commissary commenced; however, S1 contends that he
was unaware of complainant's prior EEO activity.
The rating period at issue began on July 1, 2004 and ended on June 30,
2005. Complainant's mid-year review was conducted on February 15, 2005,
and the final rating was issued on July 14, 2005. Complainant resumed
her regular duties on July 17, 2005. Ratings were comprised of five
critical performance elements: 1E (Safety, Security and Sanitation); 2E
(Customer Satisfaction); 3E (Reduce Unit Cost); 4E (Accountability and
Financial Control); and 5E (Efficiency of Operations).
In her final appraisal evaluation, complainant received a rating of
"fully successful." With respect to each element, complainant's ratings
were: 1E, Excellent; 2E, Met; 3E, Met; 4E, Met; 5E, Met.
The record indicates that the complainant first initiated EEO
activity on August 19, 2005, where she filed an informal complainant of
discrimination. On December 7, 2005, complainant filed an EEO complaint
alleging that she was discriminated against on the bases of sex (female),
disability (carpal tunnel syndrome), and in reprisal for prior protected
EEO activity under Title VII when:
1. She received a rating of 'fully successful' for the rating period
ending June 30, 2005;
2. On August 26, 2005, she requested and was denied a different work
schedule; and
3. On October 1, 2005, her work schedule was changed
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 timely
requested a hearing but subsequently withdrew her request on June 7,
2007. Consequently, on September 13, 2007, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision (FAD), the agency found that complainant had
failed to show that the agency's proffered reasons for its actions
were a pretext for discrimination. Specifically, the agency found
that complainant's rating was based on legitimate, non-discriminatory
factors. The FAD noted that complainant's mid-year review indicated
that she needed to improve her job performance, which cited specific
issues relating to her "involvement in other employees' problems,"
the need to keep "conversations to a minimum," and the "need to
work faster." With respect to her second claim, the agency found that
management's decision was based on mission requirements that applied to
all employees, which superseded complainant's schedule change request.
Finally, with respect to complainant's third claim, the agency found
that the schedule change was temporary and was required because the
Commissary was moving to a new location, and applied equally to all
Commissary employees. Accordingly, the agency found that the agency had
not discriminated against complainant.
CONTENTIONS ON APPEAL
Neither the complainant nor the agency submitted 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 the EEOC "reviews 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
(1) Disparate Treatment Based on Gender and Disability1
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976).
First, complainant must 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. McDonnell Douglas, 411 U.S. at
802. Next, the agency must articulate a legitimate, nondiscriminatory
reason(s) for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful,
then the complainant must prove, by a preponderance of the evidence,
that the legitimate reason(s) proffered by the agency was a pretext
for discrimination. Id. at 256.
The prima facie inquiries may be dispensed with in this case, however,
since the agency has articulated legitimate 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). Accordingly,
we shall assume arguendo that complainant has established prima facie
claims of gender, disability and reprisal discrimination therein.
Proceeding to step two of the McDonnell Douglas inquiry, we find that
the agency has met its burden by showing that its actions were based on
legitimate, non-discriminatory factors.
With respect to claim (1), the agency indicated that during her mid-year
review in February 2005, complainant was told by management that its
assessment of her duty performance, since July 2004, was that she required
improvement. Specifically, management noted that "[complainant] was
told that she had to work faster because other tellers were doing more
work than her." Additionally, complainant's mid-year review shows that
management requested that she curtail her conversations with cashiers
and her "involvement in other employees' problems," so as to ensure that
"everything is done in a timely manner. Moreover, management also noted
that, for almost half of the rating period, complainant did not work in
the customer service department (in her regular Teller position), due to
surgery, recuperation and restrictions after undergoing surgery for CTS.
In place of her regular duties, complainant's light-duty work consisted
of checking the identifications of contractors, employees, and vendors
as they entered and exited the Commissary.
With respect to claim (2), the agency noted that mission requirements
supersede employee's work schedule requests. Management contended that
because complainant was the only employee on a 32-hour schedule, there
were no other employees against whom she could compete for her schedule
change request. With respect to claim (3), management asserted that
due to the relocation of the Commissary, all employees were required to
work additional hours. To this end, individuals both within and outside
of complainant protected classes were also required to adjust their work
schedules. The record shows that the schedule change was temporary and was
necessitated by mission requirements (relocation of the Commissary).
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, nondiscriminatory reasons are a pretext
for discrimination. With respect to claim (1), as noted in the record,
complainant contended that she deserved a higher rating than fully
satisfactory because her job performance was the same as in previous
years, when her ratings were rated as "excellent." As cited in the
record, complainant contended that she also deserved a higher rating
because she "always comes to work before [her] scheduled time," and
was "always professional, courteous and willing to help customers."
With respect to claim (2), complainant contended that she was entitled
to a schedule change because management had "accommodated two other
tellers." Complainant contends that S1 has "an attitude with women who
do not think his way." With respect to claim (3), complainant's only
rebuttal is that she believed the schedule change was motivated by her
gender and disability because S1 harassed her by calling her at home.
We find that the complainant has failed to rebut the specific reasons
offered by the agency in explanation of its actions. With respect to claim
(1), the record indicates that the rating provided to complainant was an
accurate assessment of her performance during the rating period. In this
regard, we note that management found that from June 2004 until early
2005, complainant, who at that time was able to perform the full range of
her duties, needed to improve her performance. Afterward, from March 25,
2005 until June 30, 2005, she was on light duty and was unable to perform
the duties of her position; therefore she could not demonstrate the type
of improvement that might have resulted in a higher rating.
With respect to claim (2), the record indicates that schedule changes
were allocated based on an open bid-compete system. Because complainant
was the only teller on a 32-hour schedule,2 she could not bid against
any other tellers; therefore she was precluded from receiving the
schedule change she sought. In response, complainant's rebuttal does
not indicate that the agency's reasons are a pretext for discrimination.
The employees that complainant cites as comparators worked a different
schedule than she did.
With respect to claim (3), the record indicates that the schedule change
was temporary and was required because the Commissary was moving to a
new location, and applied equally to all Commissary employees. Indeed,
the record shows that complainant was not unique in receiving a change
of schedule. There were other similarly situated agency employees who
also received changes to their respective work schedules.
Accordingly, beyond complainant's assertions and subjective beliefs,
there is nothing in the record that suggests that discrimination played a
part in any of the agency's actions. Therefore, we find that complainant
failed to establish that she was subjected to discrimination on account
of gender, disability or previous EEO activity.
(2) Hostile Work Environment
Finally, we find, under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993), that complainant's claim of hostile
work environment must fail. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie
case of hostile work environment is precluded based on our finding that
complainant failed to establish that any of the actions taken by the
agency were motivated by discriminatory animus or retaliatory motive.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000). Accordingly, we find that complainant has failed
to establish that she was subjected to discriminatory harassment.
CONCLUSION
Based on a thorough review of the record, the Commission finds that
the agency appropriately found that complainant had not been subject to
discrimination. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
____3/25/10______________
Date
1 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
2 Complainant was working a 32 hour schedule before her CTS surgery.
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0120080241
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080241