Shirley E. Jenkins, Complainant,v.Robert M. Gates, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionMay 21, 2010
0120081296 (E.E.O.C. May. 21, 2010)

0120081296

05-21-2010

Shirley E. Jenkins, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.


Shirley E. Jenkins,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense

(Army & Air Force Exchange Service),

Agency.

Appeal No. 0120081296

Hearing No. 420-2007-00158X

Agency No. 06.134

DECISION

On January 15, 2008, complainant filed an appeal from the agency's

December 26, 2007 final order 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 accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission AFFIRMS the agency's final

order.

ISSUES PRESENTED

The issues presented are: (1) whether the EEOC Administrative Judge's

(AJ) issuance of a decision without a hearing was appropriate; and (2)

whether complainant established that she was subjected to disparate

treatment and harassment on the bases of race, national origin, sex,

color, and in reprisal for prior protected EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Regular Part-Time Warehouse Worker at the agency's Maxwell Air

Force Base Military Clothing Sales Store (MCSS) in Montgomery, Alabama.

Report of Investigation (ROI), Exh. F-5. Complainant's first-level

supervisor (S1) was the Regular Full-Time Shift Manager (Hispanic, white,

female, Panama, no prior EEO activity). ROI, Exh. F-2, at 2. The Regular

Part-Time Shift Manager (Caucasian, female) supervised complainant in

S1's absence. ROI, Exh. F-5. Complainant's second-level Supervisor (S2)

was the Store Manager (Asian, brown, Philippines, no prior EEO activity).

ROI, Exh. F-3, at 2; Exh. F-8. Complainant was the only Warehouse Worker

assigned to MCSS. ROI, Exh. F-5. In addition to supervising complainant,

S1 supervised three Senior Store Associates (African-American female,

African-American female, Asian female).1 Id.; ROI, Exh. F-8.

According to her official job description, complainant's primary

responsibilities as a Warehouse Worker consisted of performing "a

variety of clerical and manual duties related to receiving and issuing

merchandise and supplies, to include record keeping, document preparation

and selecting storage/shelving locations in the facility or stockroom,

as appropriate."2 ROI, Exh. F-4.

On or around January 6, 2006, complainant alleged that her hours were cut

from 30 hours per week to 25 hours per week. Complainant's Affidavit

(Complainant's Aff.), at 4. In addition, she attested that on January

9, 2006 she was allowed to work only 21 hours one week and 22 hours the

next week. Id.

On May 8, 2006, complainant was counseled by S2 for incorrectly receiving

Battle Dress Uniforms on the computer. Id. at 5. On August 9, 2006,

complainant was counseled by S2 for not sending out boots for store

credit on the previous day. Id.

On July 28, 2006, complainant received her Personnel Evaluation

Report (PER) Non-Supervisory, for the rating period of August 1, 2005

through July 31, 2006, with a total PER score of 18. ROI, Exh. F-7.

Complainant's total PER scores for the rating periods from 2001-2002 to

2004-2005 were 20, 21, 21, and 22, respectively. ROI, Exh. F-8.

On September 14, 2006, complainant alleged that S2 told her that

"my job is a warehouse person and not a cashier. The only thing I

can do is unload trucks, receive merchandise. My place of duty is in

the stockroom." Id. at 3. Complainant attested that in the past,

until trucks came in with merchandise, she helped stock the sales

floor, assisted customers with special measurements for their uniforms,

and ran the cash register. Id. When the trucks came in, complainant

would receive the merchandise and transfer it out to different bases

and vendors. Id.

On September 26, 2006, complainant filed an EEO complaint alleging that

she was subjected to disparate treatment and harassment on the bases of

race (African-American), national origin (American), sex (female), color

(black) and reprisal for prior protected EEO activity3 under Title VII

when:

1. from January 3, 2006 to September 14, 2006, she was limited in

her assignment of duties;

2. on or about January 6, 2006, her hours were cut;

3. on May 8, 2006 and August 9, 2006, she was counseled; and

4. on July 28, 2006, she received her Personnel Evaluation Report (PER)

Non-Supervisory.

At the conclusion of the investigation, complainant was provided

with a copy of the report of investigation and notice of her right

to request a hearing before an AJ. Complainant timely requested a

hearing. When complainant did not object, the AJ assigned to the case

granted the agency's September 14, 2007 motion for a decision without

a hearing and issued a decision without a hearing on December 19, 2007.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

In his decision, the AJ concluded that complainant failed to establish her

claim of harassment. Administrative Judge's December 19, 2007 Decision

(AJ Decision), at 21. Although the AJ found that complainant established

that she belongs to a protected group and that the conduct was unwelcome,

he found that there was no evidence that any of the complained about

actions were taken because of her race, national origin, sex, color,

or in reprisal for prior EEO activity. Id. at 16-18. In addition,

the AJ found that the isolated incidents between complainant and her

supervisors were insufficiently severe and pervasive enough to have

created a hostile work environment. Id. at 21. Further, the AJ found

that, even assuming, arguendo, that complainant had established a prima

facie case of harassment, the agency would avoid liability because it

exercised reasonable care to prevent and correct promptly any harassing

behavior and complainant unreasonably failed to take advantage of the

preventative or corrective opportunities provided by the agency or to

avoid harm otherwise. Id. at 21-22.

CONTENTIONS ON APPEAL

On appeal,4 complainant asserts that she continues to be harassed and that

the harassment is severe and pervasive enough to have created a hostile

work environment. Complainant's January 15, 2008 Statement on Appeal.

Complainant alleges that her supervisors have taken the following actions

against her: ethnic slurs, threats, unjustified negative evaluations,

unjustified negative references, harassment, adverse treatment, increased

surveillance, and other offensive conduct. Id. In addition, complainant

argues that S2 has failed at applying clear and equal objective criteria

for imposing discipline or making educational decisions. Id. Finally,

complainant notes that a former coworker resigned due to retribution

from management after she provided written testimony for complainant's

EEO case. Id.

In response, the agency argues that complainant's allegations on appeal

are unsupported by evidence, do not raise issues of material fact, and

do not specifically address the bases of her original complaint; and

requests that the Commission affirm the AJ's decision. Agency's February

13, 2008 Brief on Appeal, at 1-3, 8.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision the Commission must scrutinize

the AJ's legal and factual conclusions, and the agency's final order

adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a

"decision on an appeal from an agency's final action shall be based on a

de novo review . . ."); see also EEOC Management Directive 110, Chapter

9, � VI.B. (November 9, 1999) (providing that an administrative judge's

"decision to issue a decision without a hearing pursuant to [29 C.F.R. �

1614.109(g)] will be reviewed de novo"). This essentially means that we

should look at this case with fresh eyes. In other words, we are free

to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,

factual conclusions and legal analysis - including on the ultimate fact

of whether intentional discrimination occurred, and on the legal issue

of whether any federal employment discrimination statute was violated.

See id. at Chapter 9, � VI.A. (explaining that the de novo standard of

review "requires that the Commission examine the record without regard to

the factual and legal determinations of the previous decision maker,"

and that EEOC "review the documents, statements, and testimony of

record, including any timely and relevant submissions of the parties,

and . . . issue its decision based on the Commission's own assessment

of the record and its interpretation of the law").

Summary Judgment

The Commission must first determine whether it was appropriate for

the AJ to have issued a decision without a hearing on this record.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. 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's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. 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. at 255. An 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, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

We find that the AJ's issuance of a decision without a hearing was

appropriate. The record has been adequately developed, complainant

was given notice of the agency's motion to issue a decision without a

hearing, she was given an opportunity to respond to the motion, she was

given a comprehensive statement of undisputed facts, and she had the

opportunity to engage in discovery. We find that, even if we assume

all facts in favor of complainant, a reasonable fact finder could not

find in complainant's favor, as explained below. Therefore, no genuine

issues of material fact exist.

Disparate Treatment

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, 143; 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); Pavelka v. Department of the

Navy, EEOC Request No. 05950351 (December 14, 1995).

As an initial matter, we find that claim 1, the August 9, 2006 portion of

claim 3, and claim 4 are discrete actions that state a claim by themselves

and should be analyzed separately under a disparate treatment framework.

For claim 2 and the May 8, 2006 portion of claim 3, we find that they

should not be analyzed separately due to untimely EEO Counselor contact.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved

person must contact an EEO Counselor on that matter within 45 days of

the date of alleged to be discriminatory or in the case of personnel

action, within 45 days of the effective date of the action. The alleged

discriminatory acts occurred on January 6, 2006 and May 8, 2006, but

complainant did not contact an EEO Counselor until August 8, 2006,

which is beyond the 45-day regulatory limit.

Claim 1 - Limited in Her Assignment of Duties

Assuming, arguendo, that complainant has established a prima facie

case of discrimination on the alleged bases, we find that the agency

articulated a legitimate, nondiscriminatory reason for its actions.

Specifically, S1 attested that complainant had previously helped out more

often on the sales floor when there was a Full-Time Warehouse Worker,

but that her assignments were focused more on the warehouse instead of

on the sales floor now that she was the only Warehouse Worker. ROI,

Exh. F-2, at 2. In addition, S1 attested that complainant could help on

the sales floor after her warehouse duties were completed. Id. at 3.

Further, S2 attested that complainant was never limited in terms of

her duties as a Warehouse Worker, but was given verbal instructions on

many occasions to prioritize her tasks and to focus on her main tasks,

which were in the warehouse. ROI, Exh. F-3, at 2.

Because the agency articulated legitimate, nondiscriminatory reasons

for its actions, the burden shifts to complainant to demonstrate by the

preponderance of the evidence that the agency's reasons are a pretext

for discrimination. In an attempt to show pretext, complainant argues

that none of the other employees (Caucasian, Asian)5 were limited in

their duties and therefore have a better opportunity to advance within

the agency. Complainant's Aff., at 3. In addition, complainant asserts

that the limitations began after her second contact with the EEO Counselor

and because S1 and S2 disliked that she received more attention than they

did from male customers. Id.; Complainant's Rebuttal Statement, at 1.

In this case, we find that complainant has failed to provide evidence

that the agency's actions were based on discriminatory or retaliatory

intent. S1 attested that all the MCCS employees were allowed to work

in other areas of the store once their primary duties, as reflected

by their job descriptions, had been completed. ROI, Exh. F-2, at 3.

We note that complainant's responsibilities clearly differ from those of

the three other non-management employees to whom she compares herself,

as evidenced by her job title (Warehouse Worker versus Senior Store

Associate), job description, pay plan (Crafts/Trades versus Pay for

Performance), and grade (5 versus 1). ROI, Exh. F-8. As such, we find

that it was reasonable for management to ask complainant to focus on the

duties related to her official capacity as a Warehouse Worker instead

of responsibilities on the sales floor.

Claim 3 - Counseled on August 9, 2006

Assuming, arguendo, that complainant has established a prima facie case of

discrimination on the alleged bases we find that the agency articulated

a legitimate, nondiscriminatory reason for its action. Specifically,

S2 attested that complainant had been provided with a written instruction

the previous day to ship boots for store credit, but that S2 discovered,

after complainant had answered affirmatively when asked whether the

task had been completed, that the boots in fact had not been shipped.

ROI, Exh. F-3, at 6. In addition, S2 attested that she felt counseling

was warranted because complainant either chose not to follow orders or

failed to communicate with S2 that she (complainant) forgot. Id.

Because the agency articulated legitimate, nondiscriminatory reasons

for its actions, the burden shifts to complainant to demonstrate by the

preponderance of the evidence that the agency's reasons are a pretext

for discrimination. In an attempt to show pretext, complainant argues

that she was singled out for counseling because the two Shift Managers

were not counseled when they made larger logistical blunders, but merely

were told to be more careful. Complainant's Aff., at 6.

In this case, we find that complainant has failed to provide evidence that

the agency's actions were based on discriminatory or retaliatory intent.

Complainant has provided no evidence to show that she was singled out

and both S1 and S2 attested that the Shift Managers were counseled

for mistakes. ROI, Exh. F-2, at 4; ROI, Exh. F-3, at 6-7.

Claim 4 - Received Her Personnel Evaluation Report (PER)

Assuming, arguendo, that complainant has established a prima facie

case of discrimination on the alleged bases we find that the agency

articulated a legitimate, nondiscriminatory reason for its action.

Specifically, S1 attested that complainant consistently called in sick

and that her performance was poor. ROI, Exh. F-2, at 5. In addition,

S1 attested that complainant did not take initiative in doing daily

tasks, but required constant reminders what her responsibilities were and

would get angry or defensive when reminded. Id. Further, S2 attested

that, while complainant performed well in some areas, she made errors

when receiving merchandise, failed to take initiative, and responded

unprofessionally when given direct orders as part of her daily work.

ROI, Exh. F-3, at 7.

Because the agency articulated legitimate, nondiscriminatory reasons

for its actions, the burden shifts to complainant to demonstrate by the

preponderance of the evidence that the agency's reasons are a pretext

for discrimination. In an attempt to show pretext, complainant argues

that her PER score should not have dropped because she received several

positive comment cards from vendors and customers, who ask for by name due

to her outstanding work ethic and hospitality. Complainant's Aff., at 7.

In addition, complainant asserts that none of the other MCCS employees'

PER scores dropped and that her total PER score was the lowest that she

had ever received in her 15 years with the agency. Id.

In this case, we find that complainant has failed to provide evidence

that the agency's actions were based on discriminatory or retaliatory

intent. S1 and S2 attested that complainant did not receive any positive

comment cards; that the only customers that asked for her were personal

friends who come to visit; and that vendors dealt directly with S2.

ROI, Exh. F-2, at 5; ROI, Exh. F-3, at 7. In addition, we note that we

cannot compare directly the PER scores of complainant and the other MCCS

employees, as complainant was the only Warehouse Worker and the other

employees were Senior Store Associates or Shift Managers. A review of the

total PER scores for the five rating periods from 2001 to 2006, however,

show that complainant's score change was not drastically different from

the score changes of the Senior Store Associates.6 ROI, Exh. F-8.

Harassment

Complainant alleges that she was subjected to harassment by management

as stated in claims 1 through 4. In addition, complainant asserts that

S2 is harassing her "because she is trying to make me quit so that she

can hire one of her Asian friends." Complainant's Aff., at 8.

To establish a claim of harassment, complainant must show that: (1) she

is a member of the statutorily protected class; (2) she was subjected to

harassment in the form of unwelcome verbal or physical conduct involving

the protected class; (3) the harassment complained of was based on the

statutorily protected class; and (4) the harassment affected a term or

condition of employment and/or had the purpose or effect of unreasonably

interfering with the work environment and/or creating an intimidating,

hostile, or offensive work environment. Humphrey v. United States Postal

Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

The harasser's conduct should be evaluated from the objective viewpoint of

a reasonable person in the victim's circumstances. Enforcement Guidance

on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March

8, 1994). Further, the incidents must have been "sufficiently severe

and pervasive to alter the conditions of complainant's employment and

create an abusive working environment." Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,

Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor,

complainant must also show that there is a basis for imputing liability

to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th

Cir. 1982).

We find that the evidence in the record is insufficient to support a

finding that S1 or S2's actions toward complainant were based on her

race, national origin, sex, color, or in reprisal for prior EEO activity.

As articulated above in our disparate treatment analysis, we find that

complainant has failed to show that claim 1, the August 9, 2009 portion

of claim 3, or claim 4 were motivated by discriminatory or retaliatory

animus. In addition, regarding claims 2 and the May 8, 2006 portion

of claim 3, we find that, aside from her bare assertions, there is no

evidence that complainant's hours were cut or that she was counseled

because of her membership in a protected class. Similarly, complainant

has not provided specific evidence to support her assertions on appeal.

Further, we find that management's actions did not alter the conditions

of complainant's employment or create an abusive working environment.

As such, we find that complainant has not established her claim of

harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission AFFIRMS

the agency's final order, finding that complainant failed to establish

discrimination on the bases of race, national origin, sex, color, or in

reprisal for prior EEO activity.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court

that the Court appoint an attorney to represent you and that the Court

also 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 with the Court 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

May 21, 2010

Date

1 The agency does not track the color or national origin of its employees.

ROI, Exh. F-15; F-18.

2 Complainant's responsibilities also include, in relevant part, the

following:

a. Insures the proper receipt, verification and documentation of

merchandise/supplies. As required, posts sell prices on documents.

Records discrepancies or damaged shipments, initiates appropriate

corrective action and completes necessary documentation.

b. Signs receiving reports and other accountable documents and

processes receipt through appropriate systems...

c. Processes damaged/defective merchandise returned for repair or

replacement. Maintains records and takes follow-up action, as necessary.

d. Completes various merchandising documents and reports...

e. Assists in taking stock counts and official inventories.

ROI, Exh. F-4.

3 Complainant's prior EEO activity consisted of contacting an EEO

Counselor on two previous occasions. There is no record within the agency

that complainant had filed an EEO complaint prior to the instant matter.

Complainant's Aff., at 2; ROI, Exh. 16.

4 The Commission notes that complainant's February 25, 2008 and

February 28, 2008 statements in support of her appeal were filed in

an untimely manner. EEOC Regulation 29

C.F.R. � 1614.403(d) provides that any statement or brief on behalf of a

complainant in support of the appeal must be submitted to the Office of

Federal Operations and to the agency within 30 days of filing the appeal.

In this case, the record reflects that complainant filed her appeal and

a statement in support on January 15, 2008. Any additional statements

in support were due no later than February 14, 2008.

5 In specifically mentioning Caucasian and Asian employees, complainant

appears to be referring to S1, the Part-Time Shift Manager, and the

one Senior Sales Associate. The other two Senior Sales Associates are

African American.

6 Complainant's PER scores for the five rating periods from 2001 to 2006

were as follows: 20, 21, 21, 22, 18. ROI, Exh. F-7. The three Senior

Store Associates' PER scores for the same periods were as follows:

Associate 1 - 13, 12, 14, 14, 13; Associate 2 - 12, 14, 14, 15, 14;

and Associate 3 - 13, 14, 14, 16, unknown. ROI, Exh. F-8.

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0120081296

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120081296