01A11436
10-24-2001
Patricia A. Burks, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Patricia A. Burks v. Department of Defense
01A11436
10-24-01
.
Patricia A. Burks,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A11436
Agency Nos. DFAS-IN-IN95-032;
DFAS-IN-IN95-012;
DFAS-IN-IN95-041
Hearing Nos. 270-98-9153X;
270-98-9154X; 270-98-9155X
DECISION
Patricia A. Burks (complainant) filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final agency order
(FAO) dated December 6, 2000, concerning her complaint alleging that
she was discriminated against on the bases of her race (black), sex
(female), and reprisal (prior EEO activity) in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. (1994 & Supp. IV 1999). The appeal was postmarked December 15, 2000.
Accordingly, the appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues presented on appeal are whether complainant was discriminated
against:
In Complaint No. DFAS-IN-OOIN-95-032, when complainant alleged that
because of her race and sex a) on June 13, 1995, she received a Summary
Rating of �highly successful� on her Defense Finance and Accounting
Service (DFAS) Form 430-2 Civilian Performance Rating for the period
August 12, 1994 through April 30, 1995, and b) she was subjected to
harassment in the workplace when allegedly derogatory remarks and
jokes were made by or in the presence of her supervisor;
In Complaint No. DFAS-IN-OOIN-97-012, complainant alleged that because
of her race, sex, and reprisal a) she was rated �highly successful�
for the rating period May 1, 1995 through April 30, 1996, and 2) she
was harassed when she was given a counseling statement and a �letter
of requirement� on October 3, 1996; and,
In Complaint No. DFAS-IN-OOIN-97-041, complainant alleged that because
of her race, sex, and reprisal management rated her �fully successful�
for the rating period May 1, 1996 through April 30, 1997.
BACKGROUND
During the relevant time period, complainant was a Military Pay Clerk,
GS-05, at the agency's facility in Fort Polk, Louisiana. She alleges in
three complaints that the agency discriminated and took reprisal action
against her from 1995 to 1998. On July 27, 1995, complainant filed
a formal complaint alleging that the agency discriminated against her
when her supervisor issued her a �highly successful� performance rating,
and the agency allowed racial jokes and statements in the workplace.
On November 15, 1995, complainant filed another complaint in which she
claimed racial discrimination when she received a �highly successful�
performance rating, and when she was subjected to racial jokes and
statements in the workplace. On July 27, 1997, complainant filed
a complaint and claimed race and color discrimination and reprisal
for her prior EEO filings in 1995 and 1996, when management rated her
�fully successful� for the rating period May 1, 1996 to April 30, 1997.
On August 12, 1998, all three complaints were forwarded to the EEOC
Administrative Judge (AJ) and were consolidated for hearing purposes.
Upon reviewing the evidence in Complaint No. DFAS-IN-OOIN-97-032, the
AJ found that for complainant to receive an �exceptional� rating, she
needed to receive an �exceeds� (�E�) rating on all five of the rated
performance areas. Complainant only received the �E� rating in four
areas and the AJ found that complainant failed to establish a prima
facie case as she had not shown that her supervisor (S-1) withheld an
�E� rating on the element in question under circumstances from which
an inference of discrimination would arise. Further the AJ found that
complainant only offered bare assertions that S-1 treated black employees
differently than white employees, and that S-1 had trouble dealing with a
�knowledgeable, assertive, and professional female.� The AJ found that a
similarly situated black female was given an �exceptional� summary rating
by S-1 during the period in question; that the agency met its burden
of production when S-1 indicated that complainant did limited input on
reenlistment, and primarily worked with the absent without leave (AWOL)
files; and that complainant declined S-1's offer to change the rating
she objected to �not rated,� which would have resulted in complainant
receiving an exceptional rating. The AJ also found that while the racial
jokes and epithets that complainant described were inappropriate, they
did not rise to the level that would support a finding of actionable
harassment because or race or gender.
In Complaint No. DFAS-IN-OOIN-97-012, the AJ found that complainant
had not established a claim of disparate treatment with respect to the
letters of requirement and counseling.<1> The complainant identified a
white comparator (C-1), who had recently returned from maternity leave
and seemed to have an erratic attendance record, and a black comparator,
who received more favorable treatment than her in that she was allowed to
conduct a private business from the office. The AJ found that complainant
and C-1 were not similarly situated and that complainant had not shown
circumstances from which an inference of discrimination would arise.
Specifically, the AJ found that C-1's attendance records indicated that
she took leave without pay and worked partial days during the period
complainant identified; that it was unclear from the record that this
employee was from the same job series as complainant, and that this
employee worked in another department and had a different supervisor.
Further, the AJ found that, even if complainant had established a prima
facie case, the agency articulated legitimate nondiscriminatory reasons
for its actions, and the complainant failed to establish that the agency's
reasons were pretextual. In support of this finding, the AJ found that
S-1 contended that complainant had used 218 hours of leave between January
1996 and August 1996, and as of August 16, 1996, complainant had no annual
or sick leave credits. The AJ found that complainant had not identified
anyone with a similar attendance record who was treated more favorably.
In complaint no. DFAS-IN-OOIN-97-041, the AJ found that while complainant
contended that she should have gotten an �exceptional� rating instead of
the �fully successful� rating that she received, she offered no evidence
of work that she did which would have supported a higher rating. The AJ
also found that the agency articulated a legitimate nondiscriminatory
reason for its actions, in that she received a �fully successful� rating
because the quality and quantity of her work had declined. The record
reveals that complainant was frequently absent from the office from May 1,
1996 to April 30, 1997. Complainant, S-1, and his immediate supervisor
agreed that this caused complainant's work to accumulate and go undone.
While the agency recognized that complainant was off work a lot and
under a doctor's care, it maintained that her performance did not merit a
higher rating. Further the AJ found that at least one of complainant's
team members, who worked with complainant from January to June 1997,
indicated that their work was time sensitive and that complainant did
not carry her share of the workload. The AJ found that complainant
focused on her allegations of race, gender and color discrimination and
reprisal and did not try to establish that she was a individual with
a disability under the Rehabilitation Act of 1973. Therefore, AJ found
that complainant failed to establish pretext and did not meet her ultimate
burden on the issue. Complainant did not refute these findings on appeal.
Similarly, with regard to complainant's allegations of retaliation
stemming from her 1995 EEO complaint, the AJ concluded that even if we
assumed that the performance ratings, the counseling statement and the
letter of requirement were adverse or negative actions, the complainant
had not established a causal connection between those actions and her
prior EEO activity. Further, the AJ found that the agency articulated
legitimate nondiscriminatory and nonretaliatory reasons for its
actions and that complainant failed to establish that these reasons
were pretextual.
The agency's final order implemented the AJ's decision. Complainant
offered no new contentions on appeal.
FINDINGS AND ANALYSIS
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's race, color or gender.
We discern no basis to disturb the AJ's decision.
CONCLUSION
Accordingly, 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 agency's
final order.
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
_____10-24-01_________________________
Date
1On August 27, 1996, S-1 issued complainant a letter of warning for
failing to follow office procedures for requesting leave on seven
different occasions. On September 20, 1996, complainant was issued a
letter of requirement setting forth leave request procedures for sick
leave not scheduled in advance, annual leave and leave without pay;
on November 7, 1996, complainant was counseled for failing to process
payments in a timely manner.