01986600
06-16-2000
Stacia Jones, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Stacia Jones v. Social Security Administration
01986600
June 16, 2000
Stacia Jones, )
Complainant, )
) Appeal No. 01986600
v. ) Agency No. 970346SSA
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (African American) and color (black) in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> For the reasons stated herein, the agency's FAD is affirmed.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the agency
discriminated against her based on the above factors when her third level
supervisor gave her a poor performance evaluation and, as a result, she
was not selected to participate in an agency career advancement program.
BACKGROUND
During the period in question, complainant was employed as an Operations
Supervisor, GS-12, at a Chicago facility of the agency. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint alleging that the agency discriminated
against her based on race (African-American) and color (black) when her
third level supervisor (C-3) submitted a negative performance evaluation
as a part of complainant's application to the Chicago Upward Bound program
(CUB) <2> and, subsequently, CUB did not select her to participate in
its program.
Complainant stated that the agency's action was discriminatory because
her first level supervisor (C-1), with concurrence and signature from
complainant's second level supervisor (C-2)<3>, gave her a score of
"Outstanding" in all five areas of the CUB evaluation. However, C-3
rated her "Excellent" in one category, "Unobserved" in a second category,
and "Satisfactory" in the remaining three categories. In addition, C-3
submitted a memorandum, which indicated that complainant ranked almost
last in terms of effectiveness as a supervisor and that many people other
than complainant would benefit more from CUB. Complainant further argued
that C-3 had minimal contact with her and that the sources he cited for
his information on her performance seemed false.
C-3 stated that he evaluated complainant as he did because C-1 as well as
four former Area Administrative Assistants (AAA) rated complainant as a
weak supervisor. C-3 further indicated that complainant was a supervisor
for a unit where managers typically placed their weakest supervisor.
C-3 added that complainant's evaluation by C-1 and C-2 was inflated
based on her race and color and to make her scores more competitive with
applicants from other areas.
At the conclusion of the complaint's investigation, the agency notified
complainant of her right to a hearing before an EEOC administrative
judge or an immediate FAD. Complainant requested an immediate FAD, which
the agency issued finding no discrimination based on race or color.<4>
This appeal followed.
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. Id. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, we may proceed directly to determining whether complainant
satisfied her burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
C-3 stated that he gave complainant a poor evaluation, based on
discussions he had with C-1 and former AAAs. He further indicated that
he took into consideration the fact that complainant supervised a unit
which was typically given to a weak supervisor. Lastly, C-3 added that
C-1 and C-2 inflated complainant's scores to make her more competitive
with applicants from other areas.
Complainant stated that C-3's action was based on discrimination because
his articulated reason was false. Complainant indicated that the date
on which C-3 alleged he spoke with C-1 was subsequent to the date C-3
signed her CUB evaluation. She further indicated that she had minimal
contact with the individuals who held the position of AAA so they would
be unable to give an accurate evaluation of her performance.
We find that complainant failed to establish that the agency's reasons
were pretextual. Although the record revealed that C-1 told C-3 that
complainant was a good supervisor who had initiative and who could benefit
from CUB, the record does not convey that C-1 thought that complainant
was truly "Outstanding." For instance, C-1 stated:
[Complainant] was a[sic] excellent supervisor and was at least trying
to move ahead (and the others wern't[sic].) She was the best candidate
at the time from our office because the others were not even interested.
I did not consider Ms. Jones as an "average" or "weak" supervisor . . .
[Our] office took a generally conservative approach on general appraisals.
When we were pushing a candidate, it was not unusual to inflate their
appraisal (compared to our normal standards) so they would be competitive
with other candidates who received more generous appraisals."
Further, the record also revealed that complainant had applied for
CUB since 1991 and had never been selected; that C-3 gave complainant
favorable scores on her CUB evaluations of previous years; that only 34
out of more than 160 applicants were selected for the Chicago Region;
that two of four former AAAs gave the EEO Investigator less than favorable
comments about complainant; and that C-1 viewed CUB different than C-3
viewed it, i.e., C-1 viewed CUB as a developmental program, whereas,
C-3 viewed it as a program for employees who were ready for promotion.
Based on the foregoing, complainant did not establish pretext, thus,
she failed to prove discrimination based on race or color.
CONCLUSION
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 16, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2CUB was a formal, competitive regional program designed to identify
and develop outstanding GS-9 to GS-12 personnel. CUB lasted a year
and provided a wide range of developmental activities to ensure that
participants emerged with a better understanding of the various components
of the region and the importance of each component in achieving the
agency's goals.
3The record revealed that the CUB evaluation was signed by C-2, however,
she stated that the evaluation was prepared by C-1 and then reviewed
and signed by her.
4While awaiting her preference for a hearing or an immediate FAD, the
agency verbally offered complainant a CUB position and a supervisory
position outside of C-3's area. Complainant declined the agency's offer.