0120090320
10-29-2010
Claudia Scott, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Claudia Scott,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120090320
Agency No. F076269
DECISION
On October 16, 2008, Complainant filed an appeal from the Agency's September 23, 2008, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that the Agency's explanation for her performance rating and the denial of her with-in-grade increase was a pretext for discrimination the based on race, sex, and religion.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Support Services Technician at the Agency's New York Field Office facility in New York City, New York. She was supervised by the Supervisory Foreign Language Program Coordinator (Supervisor). In the fall of 2006, the Supervisor rated Complainant's overall job performance as "Minimally Successful." As a result, the Agency notified Complainant on September 12, 2006, that she was not eligible for a within-grade increase.
On December 18, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and religion (Christian) when her Supervisor rated her unfairly and because she did not get a pay increase as a result.
According to Complainant, prior to her supervisor taking over, she had never been reprimanded or advised that her work performance was ineffective in any way. She also noted that her Supervisor had only been in place three months before he prepared her performance appraisal. According to Complaint, her Supervisor is of Arab decent and, in her opinion, believes that women should be subservient and not speak up for themselves because of his culture. She also felt that he was intimidated by her knowledge and the fact that she was not afraid herself. Additionally, Complainant believes that her former supervisor may have given her Supervisor a negative impression of her.
Complainant's Supervisor (Arab-Syrian, Christian, male) stated that he rated Complainant's work performance as "Minimally Successful," because she minimally organized, planned and coordinated the administrative needs of the supervisors; did not retain knowledge or apply it to the task at hand; failed to adapt to changes in procedures or the work environment; was confrontational when dealing with supervisors and colleagues; often needed redirection by her immediate supervisor; and made careless mistakes which required her supervisors to take extra time to review documents she prepared before signing them. Complainant's previous supervisor agreed with the Supervisor's assessment of Complainant's work. Further, the Agency stated that Complainant was denied a with-in grade increase because her performance rating was not high enough.
The Agency accepted the complaint for investigation and at the conclusion thereof 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). When Complainant did not request a hearing, the Agency issued a decision in which it found Complainant had not been discriminated against as alleged. Complainant filed this appeal.
Complainant did not submit any arguments on appeal.
ANALYSIS AND FINDINGS
Claims of discrimination in disparate treatment cases are generally examined under the tripartite 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts to Complainant to demonstrate by preponderant evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
To establish a prima facie case of discrimination on the bases of race, sex, and religion, Complainant must show that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) she was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between her membership in those protected classes and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (April 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (January 9, 1998); Trejo v. Social Security Administration, EEOC Appeal No. 0120093260 (October 22, 2009).
Complainant is an African American female and is a member of the Christian faith. On September 7, 2006, she was given a performance appraisal report in which her overall work performance was rated as "Minimally Successful." On September 12, 2006, she was informed by Human Resources that her within-grade increase from GS-7, step 9 to GS-7, step 10 was denied because her current performance rating indicated that her work performance was not at an acceptable level of competence. Therefore, she has shown that she was subjected to an adverse employment action. Although she did not present evidence that she was treated differently than similarly situated male employees of different races and religions, there was testimony that the Supervisor once used a derogatory Arabic term "Abda," which translates into slave, to refer to a Black female employee.1 From this evidence, we find that one could reasonably infer the existence of a link between Complainant's race and sex and the Supervisor's assessment of her work. Consequently, we find that Complainant has established a prima facie case of race and sex discrimination. Complainant, however, has presented no evidence from which we can infer that there was a link between her religion and the employment actions at issue so we find that she has not made out a prima face case of religion discrimination.
Because Complainant has established a prima facie case of race and sex discrimination, we turn our attention to the Agency's explanation for its actions. The Supervisor stated that he rated Complainant's work performance as "Minimally Successful," because she minimally organized, planned and coordinated the administrative needs of the supervisors; did not retain knowledge or apply it to the task at hand; failed to adapt to changes in procedures or the work environment; was confrontational when dealing with supervisors and colleagues; often needed redirection by her immediate supervisor; and made careless mistakes which required her supervisors to take extra time to review documents she prepared before signing them. The record indicates that Complainant's previous supervisor agreed with the Supervisor's assessment of Complainant's work. Further, the Agency stated that Complainant was denied a with-in grade increase because her performance rating was not high enough. We find that the Agency has provided legitimate nondiscriminatory reasons for its actions.
Now the burden shifts to Complainant who must show that the Agency's reasons are not true and is a pretext for discrimination. Upon review of the record, we find no persuasive evidence that the Agency's explanation was not true or that its actions were based on unlawful discrimination. Although Complainant maintained that her Supervisor harbored animus against her because of her race, sex and religion, she provided no such evidence that these alleged attitudes played a role in the personnel actions at issue. Given the fact that her former supervisor (White, male, Jewish) agreed with her Supervisor's assessment of her performance, we find no evidence of discrimination here.2 We also note that although he is of Arab decent, her Supervisor identified himself as also being a Christian. Therefore, we find that she has failed to prove she was subjected to discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
__10/29/10________________
Date
1 The Supervisor denied referring to Blacks, and particularly Black females, in derogatory and racist ways. Report of Investigation (ROI), Supervisor's Affidavit, at 12. According to the Supervisor, he once used the term "ABDY," which in Syria does not mean slave as does the "standard literal translation of the word." Id. The Supervisor explained that the term, in Syria, is used to describe someone as being Black or African-American. Thus, when he used the term, he was seeking to identify the person being referred to, e.g., "African-American female agent." The Supervisor noted that his conversation was with an Egyptian linguist assigned to the Arabic language section.
2 Complainant's former supervisor, who supervised her for three years, stated that she performed her duties at a slow pace, required constant direction and supervision and her work product routinely contained numerous errors. He also stated that he could not rely on her to do things in a timely manner, and that she became combative and did not accept responsibility for her mistakes. Finally, he noted that under the old rating system, you could only rate employees as either "Meets Expectation" or "Does not Meet Expectation." Because she met the minimal standards, he stated that he twice rated her as "Meets Expectation."
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0120090320
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090320