Mildred Riggins-Moreno, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJan 27, 2003
01A21967 (E.E.O.C. Jan. 27, 2003)

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.