01996387
04-19-2002
Gail L. Adams, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Gail L. Adams v. Department of the Army
01996387
04-19-02
.
Gail L. Adams,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01996387
Agency Nos. BODVF9703H0090 & BODVF9703H0060
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant filed a complaint in which she claimed that her supervisor
denied her a within-grade increase (WGI) and issuing her a negative
special performance appraisal (SPA) because of her sex, age (45) and
previous EEO activity.<1> The agency investigated the complaint and issued
complainant a final decision finding no discrimination on the merits.
This appeal followed.
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). As a first step,
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 denying her a WGI and issuing
an SPA. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); 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 (2000); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
The record establishes that complainant's supervisor denied complainant's
WGI strictly on the basis of her performance. For many months prior
to the WGI denial, the supervisor had been counseling complainant
for severe performance deficiencies. Upon receiving notice from the
civilian personnel office, the supervisor made the decision not to
approve the WGI. The supervisor was required to complete an SPA as
justification for his decision. The SPA was the same as complainant's
most recent previous annual performance appraisal in that complainant
failed to meet two of the five performance factors. The supervisor
counseled complainant on her performance deficiencies, both orally
and in writing. The supervisor testified, without contradiction, that
complainant had been placed on a PIP. The record contains extensive
documentation, including documented discussions and e-mail communications
between complainant and the supervisor. Noted throughout many of those
documents was complainant's failure to properly perform customer service
and support work in a correct and timely manner.
On appeal, complainant maintains that she was entitled to appeal the
agency's findings on the mixed case issues directly to the EEOC, rather
than to the MSPB. However, her appeal does not address the substance
of the agency's decision as it pertains to the two issues at hand -
the denial of the WGI and the negative SPA. She has not presented any
documents or sworn statements, apart from her own unsupported assertions,
which contradict the statements made by the supervisor, or which undermine
his credibility as a witness.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record 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
____04-19-02______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Merit Systems Protection Board has initial jurisdiction
over reconsideration decisions sustaining denials of within-grade
increases. Martinesi v. EEOC, 24 MSPR 276 (1984). However, since
complainant's claim is so firmly enmeshed in the EEO process, the
Commission assumes jurisdiction over the matter. Burton v. Department
of Agriculture, EEOC Appeal No. 01932449 (October 28, 1994).