0120073056
09-21-2007
Shirley Morgan-Jordan, Complainant, v. Charles F. Conner, Acting Secretary, Department of Agriculture, Agency.
Shirley Morgan-Jordan,
Complainant,
v.
Charles F. Conner,
Acting Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120073056
Agency No. CSREES200600163
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final decision 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. At all relevant times, complainant
was a Program Support Coordinator, GS-0303-8, for the Cooperative State
Research, Education and Extension Service (CSREES), Research and Education
and Economics Mission located in Washington, D.C. Complainant sought
EEO counseling, and then filed a formal complaint dated January 18, 2006,
alleging that the agency discriminated against her on the basis of race
(African-American), when:
1. In July 2001, complainant was hired as a GS-303-8 Program Support
Coordinator, while the position that was occupied previously by a White
employee was at the GS-9 grade level;
2. In response to her request for a promotion to a GS-9 grade level,
a desk audit of her position was conducted which resulted in the
recommendation to downgrade her position from a GS-8 to a GS-7 grade
level;
3. In March 2005, her performance appraisal for fiscal year 2004-2005
was lowered from "Outstanding" to "Superior"; and
4. In reprisal for prior protected EEO activity [arising under Title
VII], in December 2005, a manager in her supervisory chain of command
threatened to request an audit to lower her position to a GS-7 level.1
Complainant has presented no new arguments on appeal. As an initial
matter we note that, as this is an appeal from a FAD issued without a
hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is
subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
We will assume arguendo that complainant has established a prima facie
case of discrimination as to all of the issues in this case. As to issue
(1), the agency articulated a legitimate, nondiscriminatory explanation,
namely, the agency stated that the individual who previously occupied
the position for which complainant was hired also began as a GS-8.
Complainant has not presented evidence that this was untrue, or any
other evidence that this action was motivated by management's intent to
discriminate against complainant because of her race.
As to issue (2), the agency articulated a legitimate, nondiscriminatory
explanation, namely, the auditor stated that based on her assessment,
complainant was operating at the GS-7 level, and that her position
certainly did not warrant upgrade to GS-9. The auditor stated that in
conducting the audit, she did not consider the work performed by the
individual who previously occupied complainant's position. The auditor's
supervisor confirmed that the auditor conducted the audit according to
agency procedure. Although complainant and her first-level supervisor
argue that based on the duties that she performed, complainant deserved
a promotion to GS-9, we do not have the benefit of an AJ's findings of
credibility after a hearing, and we can only evaluate the facts based on
the weight of the evidence presented to us. We cannot conclude based on
this record that complainant has shown by a preponderance of the evidence
that this agency action was discriminatory based on complainant's race.
As to issue (3), the agency again articulated a legitimate,
nondiscriminatory explanation, namely, although complainant's
supervisor states that the Assistant Administrator directed her to lower
complainant's rating, there is no evidence to this effect. Again, we do
not have the benefit of an AJ's findings of credibility after a hearing,
and therefore, it is not clear what was actually said to whom. Even if
the supervisor was directed by agency officials to lower complainant's
performance rating, there is still no persuasive evidence that this was
because of complainant's race. We simply cannot find, based on this
record, that complainant has shown by a preponderance of the evidence
that the agency's reason is pretext for discrimination.
As to issue (4), the Administrator denies that she made a threatening
statement, and explains that she was simply telling complainant's
supervisor that if complainant pursued the matter of upgrades further
and another independent audit were conducted showing that her position
was improperly classified, she was concerned that the agency would not
be able to sustain complainant at the GS-8 level. The Administrator
denies mentioning complainant's EEO complaint during this discussion.
The record indicates that the Administrator and the supervisor were the
only individuals present when the comments were made, and so there is
clearly a dispute as to what actually transpired. The evidence concerning
whether a "threat" was ever made is in equipoise as there is nothing in
the record upon which we can base a credibility finding. Accordingly,
we conclude that complainant has not proven, by a preponderance of the
evidence, that this explanation is pretext for retaliatory animus.
After a review of the record in its entirety, including consideration
of all statements submitted 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 (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 21, 2007
__________________
Date
1 Concerning issues (2) and (4), the record does not establish that
complainant's position was actually ever downgraded to the GS-7 level.
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0120073056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036