01A21967
01-27-2003
Mildred Riggins-Moreno, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Mildred Riggins-Moreno v. Department of Justice
01A21967
January 27, 2003
.
Mildred Riggins-Moreno,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A21967
Agency No. B-01-2400
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 during the relevant time, complainant was employed
as an Administrative Services Technician, GS-8, Step 10 at the agency's
Community Relations Service facility located in Washington, D.C.
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 19, 2001, alleging that she was discriminated
against on the basis of reprisal for prior EEO activity when management
denied her retroactive pay for a within-grade-step increase (WGSI) from
GS-8, step 8 to a GS-8, step 9 that was initially denied in September
2000, and later granted in January 2001.
At the conclusion of the investigation, the agency did not issue the
notice prescribed by 29 C.F.R. � 1614.108(f) informing complainant of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to request an immediate final decision from the agency.
Rather, in its decision issued on January 14, 2002, the agency instructed
complainant that, if she did not wish to request a hearing, the decision
would stand as the agency's final decision, which complainant could
appeal directly to this Commission. The record reflects that complainant
did not desire a hearing and, thus, filed her instant appeal with the
Commission.<1>
The record reveals the following: In November 1999, complainant engaged
in EEO activity, which was known by the former Director (D1), former
Associate Director (AD), General Counsel (GC), and Administrative
Officer (AO). Complainant became eligible for a WGSI on September 24,
2000, however AO informed complainant that she was not performing at
an acceptable level. In a letter dated October 20, 2000, AO informed
complainant that her WGSI was denied. AO further informed complainant
that she would be placed on a performance improvement plan (PIP)
for 90 days and if complainant received a WGSI at the end of the
PIP, the increase would not be retroactive. In support for denying
the WGSI, AO stated that complainant committed numerous errors that
affected the finance work efforts of the office. AO stated that she had
informed complainant several times of these errors, taught and re-taught
complainant how to manage the travel process, and coached complainant,
however, complainant's work output demonstrated that she did not
comprehend the process. AO stated that complainant's errors caused
duplications, the over-obligation of funds, and voucher problems.
Complainant appealed AO's denial to D1. Complainant stated that
when the appeal was denied, GC advised her that she would not receive
retroactive pay even if her performance improved during the PIP period.
On January 24, 2001, AO advised complainant that her performance had
improved during her time on the PIP and that she would be receiving a
WGSI, to be effective January 28, 2001.
In its FAD, the agency concluded that complainant established a prima
facie case of reprisal discrimination. The FAD found, however, that
the agency articulated legitimate, nondiscriminatory reasons for not
providing complainant with retroactive pay. Additionally, the FAD found
that complainant did not provide sufficient evidence to establish that
the agency's reasons were pretexts for discrimination. On appeal,
neither complainant nor the agency have submitted briefs.
As a preliminary matter, we note that we review the decision on an appeal
from a FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and 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). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
The Commission finds that the agency has satisfied its burden of
articulating legitimate, nondiscriminatory reasons for not retroactively
paying complainant, namely; unless complainant could have demonstrated
that the reasons behind the original WGSI denial were inaccurate or
invalid, any subsequent WGSI would not be retroactive to September 2000.
Because the D1 upheld AO's original denial of the WGSI, the retroactive
pay request was also denied. We find that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were pretexts for discrimination. In reaching this
conclusion, we note that complainant does not deny that she made errors
in her work prior to the PIP, although she contests whether all of
the errors could be attributed to her, and states that her performance
improved during the course of the PIP. We also note that management
granted complainant a WGSI after the successful completion of the PIP.
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 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
January 27, 2003
__________________
Date
1 Because complainant does not allege that she was misled by the agency's
failure to follow the prescribed regulatory procedures, we need not
address this failure herein.