0120083022
12-11-2008
Binta M. Robinson, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Binta M. Robinson,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120083022
Agency No. 08-56-41
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated May 23, 2008, dismissing her complaint of unlawful
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. In her
complaint, complainant, a patent examiner, alleged that she was subjected
to discrimination based on her race (African American)1 when she:
1. was disparately impacted by the agency's performance appraisal system,
and
2. was disparately impacted by the agency's quality review process.2
The FAD dismissed claim 2 for stating the same claim as in prior
complaints, and dismissed the entire complaint for failure to timely
initiate EEO counseling. It found that complainant was aware of
the alleged disparate impact in claim 1 by April 2005, and of the new
quality review process in February 2003. In dismissing for untimeliness,
the FAD found that complainant did not initiate EEO counseling until
February 22, 2008, beyond the 45 calendar day time limit for doing so.
29 C.F.R. � 1614.105(a)(1) and .107(a)(2).
Complainant initiated contact with an EEO counselor on November 16,
2007, alleging that she was discriminated against when on October
22, 2007, she received a rating of marginal for her fiscal year 2007
performance appraisal. The agency accepted this claim under complaint
number 08-56-17, together with the claims of being denied participation
in the patent telework and laptop programs on December 5 and 11, 2007,
respectively, and receiving a "confirmation of oral warning" on January
22, 2008.
Meanwhile, on December 5, 2007, complainant e-mailed the agency EEO
office alleging that the performance appraisal system and the agency's
quality review process had a disparate impact on African-American patent
examiners. She alleged that they allowed for subjectivity that permits
disparate impact. She further alleged that African-American patent
examiners who were deemed to have quality problems under the quality
review process were disparately impacted because they were subjected
to additional monitoring and processes that slowed down work, causing
workflow and production problems, resulting in lowered performance
appraisal ratings and other consequences.3
Subsequently, the agency treated the disparate impact claim as a separate
matter, assigning it a new case number on February 22, 2008, which it
also designated as the date of initial EEO counselor contact on this.
The record reflects that complainant filed prior complaints about an
unsatisfactory rating on a performance appraisal and written warning
she received on October 27, 2005, a marginal rating on the fiscal year
performance appraisal she received on November 22, 2006; and being
subjected to a second pair of eyes review from August 3, 2006 to present
(she filed this complaint on October 17, 2006).
On appeal, complainant contends that she timely contacted an EEO
counselor. She reasons that she timely contacted an EEO counselor
on the performance appraisal she received on October 22, 2007; that
her disparate impact claim is like and related thereto, and that she
raised this with the EEO office on December 5, 2007. She also argues
that her disparate impact claims are not identical to prior complaints.
Submitting copies of previous acceptance of EEO complaint letters by
the agency, complainant avers that the agency defined all her prior
complaints as disparate treatment claims, and hence the instant claims
are not the same as her prior claims. She further argues that the prior
complaints do not cover the time period of October 22, 2007, and after,
and hence cannot be identical.
In opposition to complainant's appeal, the agency argues that
complainant did not initiate contact with an EEO counselor on her
disparate impact claims until February 22, 2008, beyond the time
limit to do so. It argues that complainant's prior administrative EEO
litigation, Freedom of Information Act (FOIA) requests and responses,
and correspondence show that she was aware of alleged disparate impact
discrimination regarding claims 1 and 2 long prior to 2008. For example,
in an April 8, 2007, discovery request made in connection with four of her
prior consolidated complaints, complainant asked for information which
would show whether second pair of eyes reviews had a "disparate impact"
on minority employees. Also, in a January 2, 2007, affidavit submitted
in support of a prior complaint, complainant wrote that black patent
examiners were subjectively (based on gut feelings) placed on the 2nd
pair of eyes lists, and statistically had disproportionate unsatisfactory
and marginal performance appraisal ratings. Complainant e-mailed on
December 5, 2007, that she informed the EEO office in connection with her
previous EEO litigation that the rating and quality review process had a
disparate impact on black patent examiners, but the agency omitted this,
only accepting the disparate treatment claims. The agency also argues
that claim 2 is identical to prior complaints.
We disagree with the FAD's finding that complainant untimely contacted
an EEO counselor. Complainant timely contacted an EEO counselor on
the performance appraisal she received on October 22, 2007, and raised
disparate impact by e-mail with the EEO office on December 5, 2007.
We find that the disparate impact claims are an alternate theory of
discrimination for the 08-56-17 appraisal, denial of participation
in the patent laptop and telework programs, and the oral warning.4
Complainant timely notified the agency of this alternate theory for
purposes of investigation. The agency incorrectly assigned a separate
complaint number to the disparate impact claim theory. Rather, it was
part of complaint 08-56-17.
We disagree with the FAD that disparate impact claim 2 should be dismissed
as being identical to claims in prior complaints. The agency does not
dispute complainant's contention that the agency has not previously
accepted her disparate impact claims for investigation. Given that
the agency has not characterized complainant's prior complaints as
containing disparate impact claims for investigation, it is not in a
position to argue that complainant previously raised disparate impact
in prior complaints. As the record does not show the disparate impact
claims have been investigated by the agency, we are disinclined to find
they were previously adjudicated.
ORDER
The agency is ordered to merge complaint 08-56-41 into complaint
08-56-17, and process the remanded merged claims in accordance with 29
C.F.R. � 1614.108. The remanded merged claims are whether complainant
was subjected to disparate treatment and/or disparately impacted based
on race (African-American) by the agency's performance appraisal system
and quality review process in relation to: the rating of marginal for
her fiscal year 2007 performance appraisal she received on October 22,
2007, being denied participation in the patent telework and laptop
programs on December 5 and 11, 2007, respectively, and on January 22,
2008, receiving a "confirmation of oral warning." The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
December 11, 2008
__________________
Date
1 In her complaint form, complainant checked off other bases of
discrimination. However, her complaint narrative indicates that her
disparate impact claim is based on race.
2 The FAD dismissed a third claim that on March 18, 2008, complainant
was denied reasonable accommodation. Complainant writes that she is
not appealing the dismissal of this claim.
3 Complainant indicated that the quality review process took the forms of
in process reviews, 2nd pair of eyes review, supervisory patent examiner
(SPE) reviews, and the recertification program. She also alleged that
some or all these programs created delays in doing work. Complainant has
alleged that poor performance appraisal ratings result in other adverse
consequences such as denial of eligibility to participate in the telework
and laptop programs; and the disparate impact discrimination in claims
1 and 2 resulted in warnings.
4 This is consistent with how complainant characterizes her disparate
impact claims in her untimely November 28, 2008, rebuttal brief.
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0120083022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083022