0120102406
09-01-2010
Rose Mary King, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Rose Mary King,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102406
Agency No. ATL-08-0123-SSA
Hearing No. 420-2009-000147X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 16, 2010 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Post Entitlement Technical Expert (PETE), GS-0901-10, at the Agency's Module 10, Division 3, Southeastern Program Service Center in Birmingham, Alabama.
On December 7, 2007, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On February 26, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (over 40) when:
1. she received an unfavorable Performance Assessment and Communication Systems (PACS) performance evaluation for appraisal period ending 2007;
2. her request for a reassignment out of [Complainant's third level supervisor's] unit was denied;
3. she was not selected for a promotion to the position of Social Insurance Specialist (Claims Authorizer), GS-105-11, which was advertised under Vacancy Announcement Number SEPSC-23-2007 because she did not make the Best Qualified List (BQL). Complainant further alleged that based on an audit of her application, she should have made the BQL; and
4. she did not receive a performance award for 2007;
After 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). Complainant requested a hearing. Thereafter, the Agency filed a document titled "Agency's Motion to Dismiss Three of Complainant's Four Claims for Untimely Counselor Contact." Therein, the Agency requested that claims 2 - 4 be dismissed on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). On July 16, 2009, the AJ issued an Order granting the Agency's motion to dismiss claims 2 and 3 for untimely Counselor contact. However, the AJ determined that in regard to claim 4, Complainant initiated EEO contact in a timely manner concerning the denial of her performance award for 2007.
Subsequently, the Agency filed a document titled "Agency's Proposed Findings of Fact and Conclusions of Law and Motion for Summary Judgment." However, the AJ cancelled the hearing request on the grounds that Complainant did not comply with his Orders relating to the instant complaint. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its April 16, 2010 final decision, the Agency found no discrimination concerning claims 1 and 4. The Agency found that Complainant did not demonstrate by a preponderance of the evidence that management discriminated against her on the bases of race, sex and age. The Agency nonetheless found that management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish by a preponderance of the evidence were pretextual.
Regarding claim 1, Complainant's immediate supervisor (S1) stated that in October 2007, he evaluated Complainant's performance under PACS. Specifically, S1 stated that PACS uses a three-tier rating system to rate employees in critical elements of their jobs. S1 further stated that employees can be rated at Level 1 (Unsuccessful Contribution), Level 3 (Successful Contribution), and Level 5 (Outstanding Contribution). S1 stated that he rated Complainant's performance on the following four individual performance elements as required by PACS: (1) Achieves Business Results; (2) Interpersonal Skills; (3) Participation; and (4) Demonstrates Job Knowledge. S1 stated that for the Achieves Business Results, he appraised Complainant "at the highest rating, Level 5 (Outstanding Contribution). For the remaining elements, I appraised [Complainant] at Level 3 (Successful Contribution)."
S1 stated that for the interpersonal skills element, he appraised Complainant "at less than Level 5 because a situation arose that required me to intervene between [Complainant] and one of her peers. I told [Complainant] that I wanted her to improve her interpersonal skills and to avoid situations that can lead to misunderstandings or cause problems in maintaining a good working relationship. I also observed [Complainant] was resistant to constructive criticism. Based on my observations, [Complainant] did not, on a sustained basis, continue to developing trust, respect and cooperation among other module members." S1 further stated that for the Participation element, he rated Complainant at less than Level 5 "because she did not, on a sustained basis, demonstrate initiative by voluntarily assisting other employees; promote teamwork; seek and complete additional work assignments; or contribute to implement of change. I commended [Complainant] for doing a good job during the period June 2004 to October 2004, when she was the only PETE in the module. However, I also reminded [Complainant] that per PACS the appraisal rating is based on the entire fiscal year."
Further, S1 stated that for the Demonstrates Job Knowledge, he appraised Complainant at less than Level 5 "because she did not relay information from management to her subordinates concerning lengthy call handling time and wrap-up time. [Complainant] also regularly failed to process her fraud reviews timely. I encouraged [Complainant] to better monitor her subordinates to ensure they are using all of the resources available to them so they could be more productive." S1 stated that with the 3.5 element average, Complainant was eligible for promotion and pay increase. S1 stated "no PETE under my supervision during appraisal year 2007 received an average element rating of 4.0 or more." Moreover, S1 stated that after he completed Complainant's 2007 PACS, Complainant's third level supervisor (S3) reviewed Complainant's appraisal and "recommended no changes."
S3 stated that S1's evaluation of Complainant "was generous because he gave her one 5 instead of all 3's." S3 further stated that she would have not given Complainant a 5 in any category because Complainant "often complained, was not a team player and was not a good producer. Among other issues, [Complainant] was often untimely in completing her special monthly reports. She was also slow in reviewing payment checks and frequently needed reminders. I also observed her being rude to subordinates. Although I had some reservations about giving [Complainant] one 5 instead of all 3s, I deferred to [S1's] evaluation because he was [Complainant's] first-line supervisor."
Regarding claim 4, S1 stated that performance awards are determined by the rating employees receive on their PACS appraisal. S1 stated that he approved an Exemplary Contribution or Service cash award of $750 to Complainant "which she received on April 7, 2008, for assisting her module meet its workload processing goal during the 2007 award period." S1 further stated that two named PETES in Complainant's module "until they were promoted to other positions in June 2007. I did not provide PACS performance evaluations for either [named PETE] or [another named PETE] for Fiscal Year 2007."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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).
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the agency's findings. 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 concerning claims 1 and 4 because the preponderance of the evidence of record does not establish that discrimination occurred.1
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
September 1, 2010
__________________
Date
1 On appeal, Complainant does not challenge the AJ's July 16, 2009 partial dismissal regarding claims 2 and 3. Therefore, we have not addressed these issues in our decision.
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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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