01A60343
04-17-2006
Dorothy J. Stewart, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Dorothy J. Stewart,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01A60343
Agency No. 2005-18823-FAA-02
DECISION
On October 19, 2005, complainant filed an appeal from the agency's
September 30, 2005 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). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Management and Program Analyst in the agency's Organizational Resources
and Program Management Division in Washington, D.C. On September 20,
2004, complainant contacted an EEO Counselor and filed a formal EEO
complaint on October 25, 2004, alleging that she was discriminated
against on the basis of race/color (African-American) and in reprisal
for prior protected EEO activity under Title VII when the agency failed
to give complainant a performance award for fiscal year 2004 (October 1,
2003 to September 30, 2004).
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 EEOC Administrative Judge (AJ). In accordance with
complainant's September 16, 2005 request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant
failed to prove that she was subjected to discrimination as alleged.
In affidavit testimony, complainant maintained that on August 2004, she
met with her supervisor (S1) to request a performance award for fiscal
year 2004. Complainant stated that her supervisor told her that she would
meet with the Manager of the Human Capital Resources Branch (M) to see
if complainant met the criteria for an award. Complainant stated that
S1 and M informed her on August 18, 2004 that her request for an award
had been denied. Complainant contended that S1 offered her a two-day
time-off award, but she rejected the offer because she would not accept
any time-off award that was less than 40 hours. Complainant stated
that she deserved an award because of her contributions toward the
agency meeting its goals in the Flight Plan and Business Plan and her
"track record as a high performer." Complainant contended that S1 is
extremely prejudiced toward African-Americans and does not like for them
to challenge her authority. She alleged that S1 listed White employees
before Black employees in her email messages and only allowed her to be
acting supervisor if two White employees were away from the office.
Complainant noted that she filed a complaint against the agency in 2003
that was settled in July 2003. Complainant maintains that S1 knew about
her previous EEO activity because S1 was the responsible management
official in that matter.
S1 stated that complainant was a good employee who did her work on
time and usually without error, and she was pleased with the quality
of complainant's work. S1 stated that she instructed complainant to
provide her with a list that demonstrated why she deserved an award,
but the list showed that complainant only worked at the expected level,
not beyond her expected and regularly-assigned duties. S1 noted that
complainant already received an award from another division in 2004
and received a quality grade step increase from S1 in December 2003.
S1 further stated that she recommended complainant for a two-day time
off award, but complainant rejected this award. S1 maintained that
complainant's accomplishments did not justify a 40-hour time-off award.
S1 also stated that she did not recommend anyone for an award in fiscal
year 2004 because she wanted to see how employees adapted to the new
reorganization. S1 stated that she was aware of complainant's previous
EEO activity but was not aware of the details because she was not involved
directly in the matter.
FINAL AGENCY ACTION
In its final decision, the agency concluded that complainant failed to
establish prima facie cases of race/color or reprisal discrimination. The
agency further found that complainant failed to provide any persuasive
evidence that the agency's legitimate, non-discriminatory reasons for
its actions were pretext for unlawful discrimination.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
ANALYSIS AND FINDINGS
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). In order to establish a prima facie case of race discrimination,
the complainant must first demonstrate that: (1) she is a member of
a protected class; and (2) she was treated differently, with respect
to some condition of employment, from similarly situated individuals
outside her protected class or in a manner that creates an inference of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In a reprisal claim, a complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of the 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 treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The burden of production 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). Once the
agency has articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action, or
merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511 (1993). Although the burden of production may shift,
the burden of persuasion, by a preponderance of the evidence, remains
at all times on complainant. Burdine, 450 U.S. at 256.
Upon review of this matter, we first determine that complainant failed to
provide any evidence from which an inference of race/color discrimination
could be created, such as evidence that S1 granted a similarly situated
non-Black employee an award for fiscal year 2004. In fact, the record
reveals that S1 did not approve any of the eight employees she supervised
for an award in fiscal year 2004.1 Consequently, we find that complainant
failed to establish a prima facie case of race/color discrimination.
Regarding reprisal, the record reveals that complainant filed an
EEO claim in 2003 that was settled in July 2003. S1 stated that she
was aware of complainant's prior EEO activity at the time she denied
complainant's request for an award. Although S1 stated that she was
not involved in complainant's prior EEO complaint, complainant contends
that S1 was the responsible management official in her prior EEO claim,
which we will credit to complainant as true. We further determine
that the denial of complainant's request for an award constituted an
adverse action. However, complainant's prior EEO claim was settled
in July 2003, and her request for an award was denied in August 2004,
over a year later.2 Additionally, we note that S1 awarded complainant
a quality step increase only a few months after her prior EEO activity,
further eroding any inference that reprisal motivated S1's decision to
deny complainant's request for an award. Complainant has provided no
evidence that would otherwise establish a nexus between her prior EEO
activity and the award decision. Consequently, we find that complainant
failed to establish a prima facie case of reprisal.
Nevertheless, we further find that the agency provided legitimate,
non-discriminatory reasons for its actions, namely, that complainant's
performance during fiscal year 2004 was not above or beyond the
expected level of performance for her position, and S1 did not recommend
anyone under her supervision for an award for the fiscal year because
she wanted to see how employees adapted to a new reorganization.
Complainant contends that S1 was "extremely prejudiced" against Blacks
because she listed the names of Black employees below White employees'
names in her email messages and only appointed complainant to acting
supervisory duties when two White employees were not in the office.
However, we find that the order of names listed on an email is not
persuasive evidence of pretext in this case nor can we conclude that
S1's alleged appointment of acting supervisors was based on race
without further evidence beyond complainant's bare assertion. We find
that complainant failed to persuasively rebut the agency's legitimate,
non-discriminatory reasons for its actions with evidence that its reasons
were pretext for unlawful discrimination. Consequently, we find that
the final agency decision correctly found no discrimination.
CONCLUSION
Accordingly, the Commission AFFIRMS the agency's final decision.
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
__April 17, 2006________________
Date
1 We again note that S1 offered complainant a two-day time-off award
for fiscal year 2004, but complainant ultimately rejected this award as
insufficient.
2 We note that a party relying on temporal proximity to show the
necessary causality for a prima facie case must show that the prior
protected activity and the instant event occurred very closely in time.
See Clark County School District v. Breeden, 532 U.S. 268, 273-74 (2001).
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01A60343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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