01A03264
08-28-2002
Vivian A. Reese, Complainant, v. Department of Education Agency.
Vivian A. Reese v. Department of Education
01A03264
August 28, 2002
.
Vivian A. Reese,
Complainant,
v.
Department of Education
Agency.
Appeal No. 01A03264
Agency No. ED-97-14060
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaints of unlawful 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as an Office Automation Assistant, GS-326-05, at the agency's
Office of Management, Washington, D.C. Complainant sought EEO counseling
and subsequently filed formal complaints on November 22, 1996, and on
October 29, 1997, alleging that she was discriminated against on the
bases of race (African-American), disability (sarcoidosis-respiratory),
and reprisal (prior EEO activity) as to:
(1) The assignment and non-assignment of work to her since August
17, 1995;
The denial of her request for sick leave on October 25, 1996;
The �minimally satisfactory� rating she received on July 31, 1996,
for the March 6, 1996, to July 6, 1996 (120-day) rating period.<2>
Complainant alleged that White workers received more favorable assignments
of work; that any meaningful duties she had been performing were
reassigned; and that her work assignment consisted of general clerical
duties that fell extremely short of what she should have been doing.
Complainant also alleged that she had requested as an accommodation for
her disability that she not have to make deliveries outside of the office
during extremely hot or cold weather.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, but withdrew the request and requested
that the agency issue a final decision.
In its FAD, the agency concluded that complainant did not establish a
prima facie case of discrimination as to any of her allegations. The FAD
also found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, and that complainant was unable to show that
the articulated reasons were a pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
Complainant did not file any contentions on appeal. The agency submitted
an Agency's Opposition to Appeal.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). This 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
actions at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of race, disability and reprisal
discrimination. Therefore, we consider whether the agency articulated
legitimate, nondiscriminatory reasons for its actions. If we find
that the agency articulated legitimate, nondiscriminatory reasons,
then the burden returns to complainant to demonstrate that the agency's
reasons were a pretext for discrimination, that is, that the agency's
reasons were not true and that the agency was more likely motivated by
discriminatory reasons.
Claim 1 -Assignment and non-assignment of duties. Complainant's
supervisor (S1), a GS-15 Supervisory Management Analyst, who became
complainant's supervisor in November, 1995, stated that when he first
became complainant's supervisor, complainant was primarily scanning
documents. However, after the development of a Performance Agreement,
complainant performed a variety of duties. S1 stated that employee
assignments were based on position description, grade, series, and
Performance Agreements. Further, that an employee's assignments
were primarily based on organizational functions, and workload
requirements. S1 stated that complainant's assignments were consistent
with other individual employees in similar job titles and grades. They
included administrative support, consisting of: optical scanning, word
processing and typing, filing, assisting in mailings; redacting Freedom
of Information Act requests; on-line time and attendance record keeping;
delivering packages to the Office of Management and Budget and/or Federal
Register; and other assignments as appropriate. The Commission finds
that the agency has articulated legitimate nondiscriminatory reasons
for its assignment of duties to complainant.
Therefore, the burden returns to complainant to demonstrate that the
agency's reasons were a pretext for discrimination, that is, that the
agency's reasons were not true and that the agency was more likely
motivated by discriminatory reasons. Complainant alleged that she was
not given meaningful work. However, complainant did not identify how
this was discriminatory, and further did not identify what would have
been meaningful work. While complainant advised management concerning
her assignments, all of her duties were in line with her position
description. Complainant's position description provided, in part,
that the employee serves as an office assistant with responsibility for
providing administrative and secretarial support services; performs a
variety of routine clerical tasks; receives visitors and telephone calls;
uses a computer to type, process forms and documents; and maintain files
and records. We find that complainant was working within her position
description. Complainant has not provided sufficient evidence to persuade
us that the agency's reasons for its assignments and non-assignment were
a pretext for discrimination.
Concerning complainant's assignment, on occasion, to make deliveries
outside of her office, she claimed that her disability was not
accommodated. Assuming, arguendo, that she is an individual with a
disability, the agency is obligated to make reasonable accommodations
for the known physical and mental limitations of an individual with a
disability. See Sellers v. Department of Veterans Affairs, EEOC Appeal
No. 01964003 (Oct. 3, 2000). The record reflects that the agency's
medical review officer had determined that additional information was
needed before a final determination could be made on whether complainant's
condition prevented her from making deliveries. S1 stated that although
complainant did not provide the requested medical information concerning
her medical request, when the weather was not the best and/or complainant
indicated that she was not feeling well, someone else made the delivery.
A co-worker testified that she could not recall any time that complainant
was made to go on a delivery when complainant said that she could not go.
The co-worker stated that she would go on the delivery when complainant
could not go. We find that complainant's request for accommodation
was granted.
Claim 2 - Sick Leave. Concerning complainant's request for advanced
sick leave, S1 stated that complainant submitted two requests, each
for nine hours, for advanced sick leave. Complainant, at that time,
had eight hours of sick leave available. S1 stated that he approved
the available sick leave, but denied complainant ten hours of advanced
sick leave because complainant's medical documentation did not indicate
that her requests were for a serious illness involving an exigency.<3>
The agency's policy, as set forth in the Personnel Manual Instruction,
states that the minimum time period covered by an advance is normally
five consecutive days, unless the criterion of �a serious illness
involving an exigency� is met. The denial of complainant's request for
advanced sick leave was based on the failure to provide adequate medical
documentation and agency policy. This is a legitimate, nondiscriminatory
reason for the agency's action. Subsequently, complainant requested
annual leave for the same amount of time, which was approved by S1.
Complainant appealed the denial for advanced sick leave decision to a
higher official, who also denied the request, but advised complainant
that she could submit a revised medical statement for reconsideration
of the denial. Thereafter, the sick leave was granted. As to pretext,
complainant averred, but did not prove, that White employees do not have
their leave requests denied. Complainant has not provided sufficient
evidence to persuade us that the agency's reasons for its denial of
advanced sick leave was a pretext for discrimination.
Claim 3 -Performance rating. Concerning complainant's �minimally
satisfactory� rating, S1 stated that he used the General Performance
Appraisal System (GPAS) which specifies criteria for rating complainant.
The appraisal was done for a 120-day period because when S1 first became
complainant's supervisor he learned that complainant did not have a
GPAS performance plan. Therefore a plan was develop by S1, and after
waiting the minimum 120 days, an appraisal was prepared. S1 stated
that he fully documented complainant's rating, and that complainant had
received an interim appraisal that identified some problem areas with her
performance, some of which continued and were documented in her appraisal.
The approving official reviewed the appraisal, reviewed S1's written
ratings, obtained S1's verbal input, and was satisfied that the rating
was accurate. For the subsequent rating period, the rating system was
changed to a �pass/fail� methodology, and the complainant received a
�pass� rating.
The Commission finds that the agency has articulated legitimate
nondiscriminatory reasons for its performance rating of complainant.
Complainant has not provided sufficient evidence that would persuade
us that the agency's reasons for its rating was a pretext for reprisal
discrimination. The complainant has not met her burden in this regard.
CONCLUSION
We find that the complainant has not shown by a preponderance of the
evidence that the agency's actions were motivated by discrimination
or reprisal. Therefore, after a careful review of the record, the
agency's Opposition to Appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
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
August 28, 2002
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 As to this allegation, complainant only claimed reprisal as a basis.
3 Complainant's medical documentation stated: �Please excuse
[complainant] from work .... She was seen [by the doctor] and now may
return to work.�