0120100615
05-03-2013
Maud G. MacArthur, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Maud G. MacArthur,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120100615
Agency No. BOP-2008-0519
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 19, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Corrections Treatment Specialist (Case Manager) at the Agency's Federal Corrections Institution in Danbury, Connecticut.
On July 22, 2008, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (West Indian) and national origin (Haitian) when:
On April 21, 2008, she received an overall rating of "Exceeds" on her annual Employee Performance Appraisal when, on February 28, 2008, her supervisor led her to believe that she would be receiving a rating of "Outstanding."
After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on October 19, 2009, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race and national origin. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
The instant appeal followed.
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). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that responsible Agency management articulated legitimate, nondiscriminatory reasons for the rating given. Complainant's supervisor stated that, during the relevant time, he was a rater of his employees' performance, including Complainant. The supervisor stated that an employee's performance appraisal rating is determined "based on the guidelines provided by the Bureau of Prisons, which is a standard set and those ratings are based on specific elements in each category." The supervisor further stated that the ratings he recommended for employees are "based on the performance log entries, the ratings for those performance log entries for the whole year." The supervisor stated that in the instant case, he recommended that Complainant receive an overall rating of "Exceeds" and "then the reviewer gives the evaluation."
The supervisor stated that during the February 28, 2008 meeting with Complainant, he told her "at this point, she was doing an excellent . . . and that she was on the borderline between an Exceeds and an Outstanding evaluation. Based on the three quarters that she had already completed." The supervisor stated that following the February 28, 2008 meeting, Complainant's performance did not "significantly change but there were a few areas that there were mistakes in and those are documented on the March 31 [2008] log entries."
The supervisor stated that he gave other employees "outstanding" ratings "because they went above and beyond their duties and many times it's picking up for staff members who are out and doing jobs, not just doing your own job but doing, helping out somebody else who maybe is not doing as much or is out so they're covering for that person, so that's where they would deserve an outstanding."
With respect to Complainant's assertion that the supervisor was told to lower her overall rating, the supervisor denied it. Specifically, the supervisor stated that Complainant's ratings were based on her log entries - "the log entries determined the final rating."
The Associate Warden was the reviewer of the performance ratings. The Associate Warden stated, "I reviewed all the log entries and the ratings assigned to each one...so basically the way I was taught that the majority, the way to do it in the case of, let's say element one for her, the first quarter she got "exceeds," and fourth quarter "exceeds." I would say, well, the first question is, are the majority of the ratings "outstanding" or above? No. Are the majority of the ratings "exceeds" or above? Yes. I would assign "exceeds." I would follow that all the way down for each element."
The Associate Warden stated that he met with the supervisor to discuss each employee's performance, including Complainant's performance, and "based on narrative and discussions...I... come up with the majority rule. If I believe that . . . I can deviate from that or go up or down. I will do that at that time. In this case, it is pretty much applied to the majority rule which is same way that I do for everybody." Furthermore, the Associate Warden stated that based on the log entries and the recommendations, he gave Complainant an overall rating of "exceeds."
With respect to Complainant's allegation that the supervisor told her that two other parties had taken the choice away from him to lower her ratings, the Associate Warden stated "that's the first time I'm hearing that." The Associate Warden stated that Complainant never shared her concerns about not receiving log entries and feedback from her supervisor. The Associate Warden stated, however, Complainant "had spoken to me in the past regarding . . . wanting to get an "outstanding" and I talked to her briefly and told her that . . . she would have to work with the Unit Manager to find out what it is that he believes she needs to work on or improve on to raise her evaluation from overall 'exceeds' to 'outstanding.'"
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. On appeal, Complainant argued that the supervisor made false statements in his affidavit. Complainant stated that the supervisor "uses his own personal rating scale when rating my work performance in lieu of the BOP standards because I am West Indian and Haitian of origin. I feel that he uses a different rating scale when he is evaluating the other employees who he supervises." Complainant further states that the supervisor was not truthful "when he said I have had mistakes which were documented in my logs for the fourth quarter and used that quarter to down grade and evaluate me, therefore, discriminated against me." Beyond these bare assertions, Complainant has not provided any evidence to support her claim that discriminatory animus really motivated her rating.
Therefore, after a review of the record in its entirety, including consideration of all statements 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
May 3, 2013
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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