0120064788
03-25-2008
Mary D. Pitts, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Mary D. Pitts,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01200647881
Agency No. 035400210
DECISION
On August 22, 2006, complainant filed an appeal from the July 21, 2006,
final agency decision (FAD) 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 for de novo
review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the FAD.
At the time of events giving rise to this complaint, complainant worked
as a Budget Analyst, GS-560-11, with the Budget Office of the Business
Management Fund Division (BMFD), Finance Administration, National
Oceanic and Atmospheric Administration located in Washington, D.C.
On October 2, 2003, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of race (African-American) when:
(1) in March 2002, April 2002, October 2002, April 2003 and on June 6,
2003, she was denied promotion from her position as a Budget Analyst,
GS-560-11; and
(2) her supervisor/the BMFD Chief (S1) harassed her and created a hostile
work environment by criticizing her performance and repeatedly refusing
to promote her.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
The FAD found that complainant failed to establish a prima facie case of
discrimination as to issue (1), noting that complainant did not provide
evidence that any similarly situated employee outside of her protected
group was granted a timely career ladder promotion under similar
circumstances. The FAD further found that S1 articulated legitimate,
nondiscriminatory reasons for not promoting her, namely, that she could
not justify promoting complainant in light of the problems with her
performance that she personally observed and as reflected in the numerous
complaints that S1 had received about complainant's job performance.
As an example, S1 explained that complainant had submitted a budget
before having received official information regarding the amount of
money that would be appropriated for the coming year, and when the
money was actually appropriated, it was less than complainant had
planned for. The FAD further found that the Director of the Central
Administrative Support Center corroborated S1's testimony about problems
with complainant's job performance. The FAD additionally found that
the only employee within BMFD who was promoted by S1 from the GS-11 to
GS-12 level was a Management Analyst of the same race as complainant.
The FAD noted that while there is evidence that complainant's Team
Leader and the Deputy Chief supported promoting complainant, both denied
that race was the basis for S1's decision not to promote complainant.
The FAD found no persuasive evidence of pretext, noting that the record
evidence does not bear out complainant's argument that S1 showed more
interest in the progression of White analysts than she did the Black
analysts under her charge. The FAD further noted that the fact that
complainant has received awards in 2002 and 2003 indicates that racial
discrimination is most likely not at play.
As to issue (2), the claim of hostile work environment harassment, the
FAD found that complainant has failed to show that the alleged harassment
(which includes ongoing failure to promote her despite that she was
eligible for promotion, and unfair criticism of her work performance)
was linked in any way to her race. The FAD found no discrimination.
Complainant makes no new arguments in support of her appeal. The agency
requests that we affirm the FAD.
We do not have the benefit of an AJ's findings after a hearing, as
complainant chose a FAD instead. Therefore, we can only evaluate the
facts based on the weight of the evidence presented to us. Based on a
careful review of this record, we find that complainant did not meet her
burden of proving that management's actions were more likely than not,
based on racial motives. Therefore, we AFFIRM the FAD.
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
March 25, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120064788
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036