Helaine Bettencourt, Complainant,v.Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01985726 (E.E.O.C. May. 18, 2000)

01985726

05-18-2000

Helaine Bettencourt, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.


Helaine Bettencourt v. Federal Deposit Insurance Corporation

01985726

May 18, 2000

Helaine Bettencourt, )

Complainant, )

)

v. ) Appeal No. 01985726

) Agency No. 97-25

Donna A. Tanoue, )

Chairman, )

Federal Deposit Insurance Corporation, )

Agency. )

)

DECISION

On July 10, 1998, Helaine Bettencourt (hereinafter referred to as

complainant) filed a timely appeal from the June 30, 1998, final decision

of the Federal Deposit Insurance Corporation (hereinafter referred to as

the agency) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. � 621 et seq. The appeal is timely filed

(see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance

with 64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).

For the reasons that follow, the agency's decision is AFFIRMED.

The issue presented in this appeal is whether the complainant has proven,

by a preponderance of the evidence, that the agency discriminated against

her on the bases of sex and age (DOB 6-12-45) when she was not given a

Quality Step Increase in May 1996.

Complainant sought EEO counseling in June 1996 and filed her formal

complaint on January 2, 1997. Following an investigation, she was

afforded the opportunity for an EEOC hearing or an immediate final agency

decision (FAD), and she requested a FAD. The agency issued its FAD,

finding no discrimination. Complainant has filed an appeal, asserting

her disagreement with the agency's finding.

At the time of the events herein, complainant worked as an Appraisal

Review Specialist, GG-12, in the Appraisal Review and Environmental

Section (Section). The Section consisted of eight staff, i.e.,

two Environmental Specialists, five Appraisal Review Specialists,

and one clerk-typist. In May 1996, the Section supervisor (S1) gave

performance awards of $700, each, to seven Section staff and a Quality

Step Increase (QSI) to one of the Environmental Specialists (male, age 42)

(E1). Complainant complained about the disparity in the award to E1,

noting she had received a superior performance review, and that E1 had

a poor attitude.

S1 stated that his award recommendations were conditioned on his budget

allocation for performance awards and desire to acknowledge E1's greater

contribution to the Section. Because the QSI was not charged to his

awards budget, he stated that he had more cash available for awards

for other staff. He asserted that E1 was an outstanding employee and

disagreed that complainant was more deserving. He acknowledged that the

other Environmental Specialist (E2) was a more superb employee than E1,

but believed that E2 would be rewarded in other ways through future

promotional opportunities.<1>

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). Loeb v. Textron, Inc., 600 F.2d 1003

(1st Cir. 1979). Initially, for complainant to prevail, s/he 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). Following this

established order of analysis is not always necessary where the agency

articulates an explanation for its actions. In such cases, the factual

inquiry can proceed directly to the third step of the McDonnell Douglas

analysis--the ultimate question of whether complainant has shown by a

preponderance of the evidence that the agency's action was motivated

by discrimination. United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-14 (1983). It is complainant's burden to

demonstrate by a preponderance of the evidence that the agency's action

was based on prohibited considerations of discrimination, that is, its

articulated reason for its action was not its true reason but a sham

or pretext for discrimination. Texas Department of Community Affairs

v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993). Under the ADEA, the complainant must show that

her age was a determining factor in the agency's removal action, that

is, considerations of age made a difference in the agency's action.

Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993) (age had "a

role in the process and a determinative influence on the outcome").

We find that the agency articulated legitimate, nondiscriminatory reasons

for its actions. The agency's explanation, through S1, show that its

actions were based on legitimate considerations to provide a cash award

as large as possible to staff and to recognize the greater contribution

by E1. Complainant has not demonstrated that S1's decisions, whatever

their merit, were not unwarranted nor has she demonstrated that his

actions were based on sex or age. We find therefore that complainant has

not shown that the agency's reasons for its actions were pretextual and

that the agency did not discriminate against complainant on the bases

of sex and age.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

05-18-00

Date Carlton Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on

______________ _________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at WWW.EEOC.GOV.

1Initially, S1 asked E2 to refrain from participation in the cash awards

in order to leave more money available for other staff, but E2 declined

and received the cash award. We note that, as noted by complainant. the

agency's FAD mistakenly suggested that S1 had offered E2 the QSI.