0120101886
08-24-2010
Teresa Anaya, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Teresa Anaya,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101886
Agency No. ARWSMR09MAR00934
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 19, 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.
BACKGROUND
During the period at issue, Complainant was employed as a General Engineer, YD-0801-02, at the Agency's U.S. Army Test & Evaluation Command, Development Test Command, Systems Engineering Directorate, Network and Control Systems Division, White Sands Missile Range, New Mexico.
On April 24, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
on January 29, 2009, she became aware that she had received a lower than expected (overall rating of 3 with 1 share) National Security Personnel System (NSPS) performance appraisal rating from her rater and senior rater.
The record reflects that in July 2008, Complainant was reassigned to the Test Center under the Executive Director's supervision.
At the conclusion of 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). In accordance with Complainant's request, the Agency issued a final decision on February 19, 2010, pursuant to 29 C.F.R. � 1614.110(b).
In its February 19, 2010 final decision, the Agency found that Complainant did not establish a prima facie case of sex and reprisal discrimination. The Agency further found that assuming, arguendo, that Complainant had established a prima facie case of sex and reprisal discrimination, management nevertheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The Executive Director, also Complainant's rater (R1), stated that he gave Complainant a valued performer rating of level three with one share. R1 stated that during the relevant period, he evaluated five employees, including Complainant (three female employees and two male employees). R1 stated that all five employees received a valued performer rating of level three. R1 stated "the three objectives that I came up with are basically similar to the objectives that my other employees were following, those under the G3. There were specifically three individuals that are in the same - - kind of the same group that handle the G3. And several of the objectives were from theirs as well. So, I basically kind of took what we were using for them as objectives and applied them to [Complainant]." R1 stated that his evaluation of Complainant's performance was based on a series of e-mail updates that she was required to send him. The record reflects that these e-mail updates served as a status of Complainant's progress toward the accomplishment of the performance objectives and that they did not support a rating of above level three.
Further, R1 stated that he gave Complainant one share while giving the other four employees two shares. Specifically, R1 stated that his objective giving his employees shares "was that based on the amount of work that was performed, the period of the time that the work was performed." R1 stated that he did not receive any feedback from Complainant's former supervisor in his assessment of her performance. Furthermore, R1 stated that Complainant's sex and prior protected activity were not factors in his determination to give her a valued performer rating of level three with one share.
The Commander of the White Sands Test Center stated that he was Complainant's senior rater (SR). SR further stated that R1 "does the rating, and I sit down with him and go over the rating with him. And it's his rating. I can only ask him to look at things if I think there's something wrong, but I cannot make him change it." SR stated that R1 informed him that he gave Complainant a rating of three on all of the objectives and "just said that's what he felt what she earned."
The Chief of Staff (COS) stated that during the relevant period, he was the pay pool manager. Specifically, COS stated "as the pay pool manager, what I do is to have the pay pool panel members - - there's three of them, I believe. We get together and we look at all the ratings that are in the pay pool, and we look for consistency and we look for the appropriate justification. In other words, if somebody gave a rating of 5, which is very good, then we would need to ensure that the write-up justified that rating, that this person met the criteria in the NSPS program manager handbook or the supervisor's handbook. But it's very clear criteria in that handbook on what it takes to be a level 5 employee and what it takes to be valued, good working employee, which is level 3." COS further stated that the pay pool does not change ratings but "look at the justification to be sure it was reflected, and then we adjudicate any that weren't." Further, COS stated that when he was involved in the pay pool, no one discussed Complainant's rating or try to influence the panel to either lower or raise the rating. COS stated that the pay pool "just looked at what objectives should be considered in [Complainant's] evaluation.
The Directorate of Resource Management (D1) stated that she was one of the pay pool members. D1 stated "we reviewed the supervisor's assessment compared to the objectives, and we discussed the rating of the supervisor in the sense that if it justified whatever number rating they assigned to that employee. Then, we just either validated that it supported the rating, or if we felt it did not support the rating, we went back and asked the supervisors for further clarification or further justification." D1 stated that she had no effect on how many shares Complainant received. D1 stated that no one discussed Complainant's sex and prior protected activity when it came to her rating.
On appeal, Complainant argues that the Agency improperly found discrimination. For instance, Complainant argues that the Agency's "self-exculpatory" reasoning and conclusions are meritless. Complainant further argues that if R1 "did not discriminate against one employee that does not absolve him of the charge that he discriminated against another. Look at it this way, Booth didn't shoot Mary Todd Lincoln, following the agency's reasoning, that proves he didn't shoot President Lincoln either [emphasis in the original]."
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. We have reviewed the record in its entirety, including the statements of the parties identified above, and have given consideration of all statements 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 (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
August 24, 2010
__________________
Date
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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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