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