01a63034
08-24-2006
Phyllis L. Black, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Phyllis L. Black,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A63034
Agency No. TD 05-2463
DECISION
On April 18, 2006, complainant filed an appeal from the agency's March 13,
2006 final decision concerning her equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant was
employed as an Offer-in-Compromise Examiner at a Tennessee facility of the
agency. In July 2005, complainant filed a formal EEO complaint alleging
that the agency discriminated against her based on race (African-American)
and reprisal for prior EEO activity when it (1) delayed her March 2005
within-grade increase without reason or notification, and (2) on April
28, 2005, issued her a performance appraisal that was not indicative of
her performance for the appraisal period.
The agency conducted an investigation of complainant's claims.
Complainant's second level supervisor (S1) stated that she was informed
following a mediation for the instant complaint that complainant did
not receive her within-grade increase and, after conducting research
on the matter, discovered that complainant's increase was denied due
to an administrative error related to an "unacceptable" rating from a
prior year. S1 stated that, shortly thereafter, Personnel corrected the
error and complainant received her increase. S1 stated that she was
not aware of complainant's prior EEO activity. The record contains a
personnel action, approved on June 25, 2005, for a within-grade increase
for complainant, effective March 5, 2005. Complainant's first level
supervisor (S2) stated that she issued a mid-year performance rating
of 3.4 overall to complainant, which complainant signed, and that she
used the mid-year rating coupled with additional reviews and input from
her Team Lead to determine complainant's annual performance rating of
3.4 overall. S2 added that complainant was not consistent in her work
performance. S2 acknowledged that she was aware of complainant's prior
EEO activity.
At the conclusion of the agency's investigation, it informed complainant
of the right to request a hearing before an EEOC Administrative Judge
(AJ) or an immediate final agency decision. Initially, complainant
requested a hearing but she later withdrew said request and the AJ
remanded the complaint to the agency for a final decision. On March
13, 2006, the agency issued a final decision finding that complainant
failed to prove that she was subjected to discrimination as alleged.
The agency concluded that complainant failed to establish pretext.
The instant appeal followed.
After a careful review of the record, the Commission affirms the agency's
finding of no discrimination. We conclude that complainant failed to
show that the legitimate, nondiscriminatory reasons articulated by the
agency for its actions are pretext.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 tends 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
August 24, 2006
__________________
Date
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01A63034
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A63034