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.