Arlene R. Erskine, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 11, 2002
01A23246_r (E.E.O.C. Sep. 11, 2002)

01A23246_r

09-11-2002

Arlene R. Erskine, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Arlene R. Erskine v. Department of the Army

01A23246

September 11, 2002

.

Arlene R. Erskine,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A23246

Agency No. ANBKFO0004A0290

Hearing No. 130-A1-8193X

DECISION

Pursuant to 29 C.F.R. �1614.405, the Commission accepts the complainant's

appeal from the agency's final action in the above-entitled matter.

Complainant filed a complaint in which she claimed that the agency

discriminated against her on the bases of her race (African-American)

and in reprisal for her previous EEO activity under Title VII when

she received a Level 3 �Successful� rating on her annual performance

appraisal covering the period of February 2, 1999, to December 18, 1999.

The agency accepted the complaint and conducted an investigation.

Subsequent to the investigation, complainant requested a hearing before

an EEOC Administrative Judge (AJ). The AJ remanded the complaint for

an agency decision pursuant to complainant's request. Thereafter, the

agency issued a decision dated April 3, 2002, wherein it determined that

complainant failed to establish a prima facie case of race discrimination

and did establish a prima facie case of reprisal. With regard to the

race discrimination claim, the agency determined that there are no

similarly situated individuals as complainant had identified employees

who were not at the same grade level and were not assigned to the same

set of performance standards. The agency determined that there were

legitimate, nondiscriminatory reasons for complainant's performance

rating. The agency stated that a customer complaint had been received

in September 1999, with regard to the services that complainant and her

team were providing. The agency noted that complainant did not refute

the customer complaint or provide evidence that she had exceeded her

performance standards. The agency determined that complainant failed

to establish that her Level 3 performance rating was the result of race

discrimination or reprisal.

On appeal, complainant maintains that she did not withdraw her request

for a hearing before an EEOC AJ. Complainant argues that any withdrawal

of her hearing request was done by the agency or the AJ without her

knowledge or consent.

In response, the agency asserts that the AJ issued an Acknowledgment

Order on June 12, 2001, wherein he stated that he may issue a decision

without a hearing and he gave each party 105 days to object to such

an adjudication. The agency states that it did not object, but rather

on October 10, 2001, it filed a Motion for Findings and Conclusions

Without a Hearing. According to the agency, on October 26, 2001,

complainant reiterated her request for a hearing before the EEOC AJ.

The agency states that on November 1, 2001, the AJ issued his Final

Notice of Intent to Issue a Decision Without a Hearing. The agency

states that the AJ found that complainant failed to establish a prima

facie case of discrimination or reprisal because, as a matter of law,

her Level 3 �Successful� rating on her performance evaluation was not an

adverse action. The Agency notes that at the conclusion of the Notice,

the AJ reiterated his intent to issue a decision without a hearing.

The agency states that attached to the AJ's Notice was a form entitled

Request for a Final Agency Decision. The form stated:

PLEASE BE ADVISED THAT I NOW DESIRE A FINAL AGENCY DECISION FROM THE

AGENCY, WITH ALL OF MY APPEAL RIGHTS TO THE EEOC, IN WASHINGTON, D.C.,

ALONG WITH THE RIGHT TO PROCEED IN THE APPROPRIATE FEDERAL DISTRICT COURT,

AT A LATER DATE, IF NECESSARY. PLEASE SEND MY CASE TO THE APPROPRIATE

AGENCY OFFICIAL, FOR PROCESSING, PURSUANT WITH THIS REQUEST.

The agency states that on November 14, 2001, complainant signed the

form and sent it to the AJ. The agency asserts that complainant clearly

requested a final agency decision once the AJ notified her of his intent

to issue a decision, without a hearing, in favor of the agency.

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, she must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000).

This order of analysis in discrimination cases, in which the first step

normally consists of determining the existence of a prima facie case,

need not be followed in all cases. Where the agency has articulated a

legitimate, nondiscriminatory reason for the personnel action at issue,

the factual inquiry can proceed directly to the third step of the

McDonnell Douglas analysis, the ultimate issue of whether complainant

has shown by a preponderance of the evidence that the agency's actions

were motivated by discrimination. United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department

of Transportation, EEOC Request No. 05900150 (June 28, 1990). Where

reprisal is at issue, complainant may establish a prima facie case by

showing that: (1) she engaged in a protected activity; (2) the agency

was aware of her protected activity; (3) subsequently, she was subjected

to adverse treatment by the agency; and (4) a nexus exists between the

protected activity and the adverse action. See Whitmire v. Department

of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000); Coffman

v. Department of Veteran Affairs, EEOC Request No. 05960473 (November

20, 1997); Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).

Initially, we shall address complainant's contention that she did not

withdraw her request for a hearing before an EEOC AJ. The record contains

the form bearing complainant's signature that explicitly requests a final

decision from the agency. It is evident that complainant withdrew her

request for a hearing and sought a remand of the complaint to the agency

for a final agency decision.

With regard to the merits of complainant's discrimination and reprisal

claims, we shall assume arguendo, that complainant established a prima

facie case of both race discrimination and reprisal. Next, we shall

examine the reasons articulated by the agency for complainant's Level

3 performance rating. The agency stated that a customer complaint was

submitted during the appraisal period with respect to the services that

complainant and her team were providing. The agency stated that this

was the primary reason for complainant's Level 3 rating. The agency

further stated that complainant's performance did not merit an �Exceed�

in any of the remaining areas identified in her performance standards.

We find that the agency articulated legitimate, nondiscriminatory reasons

for complainant's Level 3 �Successful� performance rating.

A review of the record reveals that complainant has failed to establish,

by a preponderance of the evidence, that the agency's reasons for

complainant's Level 3 performance rating were pretext intended to

mask discriminatory intent. Complainant has not shown that her work

merited a higher rating than a Level 3 �Successful�. Complainant has

not refuted the agency's position that a customer complaint was made

concerning the services that complainant and her team were providing.

We find that complainant has failed to show that her performance rating

was motivated by race discrimination or reprisal.

After a review of the record in its entirety, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the agency's final

action, because a preponderance of the record evidence does not establish

that discrimination occurred.

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

September 11, 2002

__________________

Date