Ollie M. Darby, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionSep 11, 2002
01A05658_r (E.E.O.C. Sep. 11, 2002)

01A05658_r

09-11-2002

Ollie M. Darby, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.


Ollie M. Darby v. Department of Energy

01A05658

.September 11, 2002

Ollie M. Darby,

Complainant,

v.

Spencer Abraham,

Secretary,

Department of Energy,

Agency.

Appeal No. 01A05658

Agency Nos. 97(175)

97(191)

DECISION

Complainant filed a timely appeal from a July 14, 2000 agency final

decision finding no discrimination concerning the captioned complaints,

which she brought pursuant to Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal.

See 29 C.F.R. � 1614.405.

In complaint # 97(175), filed on July 22, 1997, complainant, a

GS-14 Systems Accountant at the agency's Ohio Field Office, claimed

discrimination on the bases of race (African-American) concerning the

purportedly improper processing and ultimate denial of her request for

a GS-15 upgrade to her Team Leader position. Specifically, complainant

contends that:

Agency officials delayed the processing of her request for a desk audit;

Rather than honoring her request for a second desk audit review by

Headquarters, the agency instead had this review performed by its

Chicago Regional Office, after a substantial delay;

The agency refused to disclose the results of these audits to

complainant, and failed to provide her with notice of her appeal rights,

requiring complainant to resort to Freedom of Information Act (FOIA)

requests to obtain this information; and

Agency officials refused to up-grade her position despite the findings

in the second audit review that she was performing supervisory duties

beyond her position description.

Complainant filed complaint # 97(191) on August 14, 1997, claiming

discrimination on the bases of race (African-American) and in reprisal

for prior EEO activity, as evidenced by the following incidents:

In July 1997, complainant was assigned from her Team Leader position

to a detail of Special Assistant to the Chief Financial Officer (CFO),

which purportedly consisted of no duties;

For the 1995-1996 performance period, complainant received the unfairly

low rating of �meets expectations,� rather than the �outstanding� rating

she deserved, and she did not receive a quality step increase; and

By contrast to the other Team Leaders, concerning approximately the

same period, complainant received fewer bonuses and awards.

After investigating both complaints, the agency issued its July 14,

2000 decision finding no discrimination. Complainant now appeals this

determination.<1>

# 97(175)

In its decision, the agency determined that complainant failed

to establish a prima facie case of race concerning any of the four

claims raised by complainant in this complaint. Regarding claim 1, the

agency determined that complainant failed to provide evidence that a

similarly situated co-worker outside of her protected class received a

quicker response to a request for a desk audit. Regarding claim 2, the

agency found that its regulations did not require a second desk audit

by Headquarters, and that desk audits of two other employees at the Ohio

Field Office were also conducted by its Regional Office at the same time

as complainant's, to include one for a Caucasian employee, such that

complainant failed to demonstrate that she was treated differently from

her similarly situated co-workers regarding this claim. In addressing

claim 3, the agency found that its personnel policy does not require that

appeal rights be provided after desk audits, noting that no employee

who had a desk audit received appeal rights, except that complainant

was advised of the appeal procedure by the Human Resource Director.

Regarding claim 4, the agency found that complainant again failed to

demonstrate disparate treatment, because the other two audited workers

also failed to receive upgrades to their positions; and, for the relevant

period, no employee received an upgrade from a GS-14 to a GS-15.

# 97(191)

In its decision, the agency determined that complainant failed to

demonstrate a prima facie case of race discrimination regarding claim 1

(her CFO Special Assistant detail), because she did not show that she was

treated adversely compared to her co-workers. Specifically, the agency

found that seven other employees were also detailed during this time,

all Caucasian, and one was detailed to the CFO along with complainant.

The agency noted that prior to her detail, complainant had requested

that she be transferred to the CFO. Regarding claim 2, concerning

complainant's performance appraisal, the agency found that all of the

Team Leaders in complainant's organization received the same rating,

e.g., �meets expectations,� and that none of them received a quality

step increase during the relevant time. Regarding claim 3, the agency

determined that while complainant established a prima facie case of race

discrimination, the agency articulated legitimate, non-discriminatory

reasons for not giving her awards comparable to the other Team Leaders,

namely that she was a volatile supervisor and her conduct hindered

work performance. The agency then found that complainant failed to show

that this reason was a pretext for discrimination. In addressing these

claims on the basis of reprisal, the agency determined that complainant

established a prima facie case, but ultimately failed to show that the

agency's articulated reasons (presumably referring to complainant's

performance and conduct problems) were a pretext for reprisal.

On appeal, complainant requests that the Commission disallow the agency's

decision due to its failure to observe pertinent case processing time

requirements. Additionally, complainant provides a detailed appeal

statement and supporting documentation disputing the agency's evidence,

and requests that the Commission find in her favor and award her a full

measure of damages.

Analysis and Findings

The 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 instances. Where, as here,

the agency articulate a legitimate, nondiscriminatory reasons for its

actions, the factual inquiry can proceed directly to the ultimate issue

of whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. 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, 1999).

# 97(175)

In this case, we find that the agency proffered a legitimate,

non-discriminatory reason for its refusal to up-grade complainant's Team

Leader position: the results of both desk audits failed to support an

up-grade to GS-15. Complainant argues that the second audit showed

that she performed supervisory functions commensurate with a GS-15;

however, our review of the audit report, as well as the affidavit

testimony of the individual who conducted the audit, clearly reflects

that complainant's duties did not warrant an up-grade, and that to the

extent she was performing duties beyond her position description, she

did not have approval to do so. Moreover, the record shows that the

agency adhered to all applicable personnel regulations in conducting

the desk audits at issue. We note that the Human Resource Director

personally met with complainant to explain the audit procedure and

results and to provide her with guidance on appeal procedures, which

he followed-up with a written memorandum when complainant failed to

return to pick up the information she requested. Furthermore, although

the record confirms that complainant submitted a FOIA request, we find

that the agency independently provided complainant with a decision and

pertinent information within approximately two weeks after receiving the

audit report from the Chicago Office. While we have carefully considered

complainant's arguments in support of her claims, we find that the reasons

proffered by the agency are credible and supported by the record, and

that complainant provides insufficient evidence to demonstrate that these

reasons are untrue or pretextual. Accordingly, we AFFIRM the agency's

finding of no discrimination concerning complaint # 97(175).

# 97(191)

After review, we find that the agency articulated legitimate

non-discriminatory reasons to justify all of the actions set forth

in this complaint, namely that they were undertaken in response to

complainant's inappropriate management style, her communication problems

(described as �combative�), and her disruptive conduct. Although in

response, complainant claims that those she opposed treated her just

as combatively, but were better treated by management in terms of

performance ratings and awards, the evidence fails to show that any

of her named comparatives engaged in this type of conduct exclusive

of interactions with complainant. While the record shows, and her

performance appraisal reflects, that complainant's performance in terms

of technical skills is excellent, and that she is a hard worker, it is

clearly her confrontational style and continuous disagreements with

superiors, as well as her subordinates ,which resulted in her �meets

expectations� rating. Similarly, the record shows that it is this same

conduct which resulted in her detail to the CFO, with testimony of most

of her former subordinates reflecting that the team was more productive

and the atmosphere was less tense (�no more door slamming�) upon her

departure, thereby confirming management's assessment of the situation.

In this regard, despite her contentions to the contrary, we find that

the record reflects that in her Special Assistant assignment complainant

performed certain transitional duties as the initial preparation for the

eventual closing of the office in approximately 7 � years. With respect

to awards, the record shows that complainant did receive one cash award

during the pertinent period, but that her frequent disruptions to the work

of the office precluded additional awards. Although complainant strongly

disputes these articulated reasons, we find that they are supported by

the record, and that complainant otherwise offers mere speculation to

demonstrate that they are a pretext for race discrimination or reprisal.

Accordingly, we AFFIRM the agency's finding of no race discrimination

and no retaliation concerning complaint # 97(191).

Conclusion

Therefore, after a careful review of the record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final decision finding

that complainant failed to prove discrimination or retaliation by a

preponderance of the evidence.

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

September 11, 2002

__________________

Date

1According to Commission records, complainant filed several other EEO

complaints concerning incidents which occurred at the same facility

during the same approximate time frame. Some of these complaints

are the subject of appeals currently pending at the Commission: EEOC

Appeal Nos. 01A05655, 01A05656, and 01A05657. Furthermore, we note that

Commission records also reflect that complainant raised additional related

claims in other complaints which have previously been adjudicated, and

we note that complainant references her pertinent EEO complaints in the

comprehensive chronology of the alleged incidents of discrimination she

provides for review. Therefore, in rendering a decision on the instant

appeal, as well as the referenced pending appeals, the Commission shall

view each claim in the context of the entire set of circumstances set

forth by complainant.