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.