Agency.

Equal Employment Opportunity CommissionMay 19, 2006
02a60010 (E.E.O.C. May. 19, 2006)

02a60010

05-19-2006

Agency.


Michael Hammond v. FDIC

02A60010

May 19, 2006

.

Michael Hammond,

Grievant,

v.

Martin J. Gruenberg,

Acting Chairman,

Federal Deposit Insurance Corporation,

Agency.

Appeal No. 02A60010

Grievance No. FMCS No. 05-50038

DECISION

The grievant timely initiated an appeal from an Arbitrator's decision

concerning his grievance of unlawful employment discrimination in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.401(d) and .405. For the following reasons, the

Commission affirms the findings of the Arbitrator.

The grievant was employed as an Information Technology Specialist, GS-13

in the Database Management Section. The record reflects that the union

and the agency negotiated a Compensation Agreement for a Corporate Success

Award (CSA) program for the years 2003-2005. The agreement reflects that

the CSA was designed to recognize an employee's individual initiative,

exceptional effort and/or achievements reflecting important contributions

to the agency. During 2003, the FDIC Chairman decided, pursuant to the

agreement with the union, that one-third of the recipients of the award

would be bargaining unit employees. When grievant did not receive an

award in 2003, he filed a grievance regarding his non-selection for an

award and raised claims of age (47 years old) discrimination. Thereafter,

the Arbitrator issued a decision finding there was no discrimination and

denying the grievance. Specifically, the Arbitrator found that the three

co-workers to whom grievant compares himself were all over the age of 40,

and one was actually older that grievant. The record reflects the others

were only one or two years younger than grievant. The Arbitrator also

specifically found that there was �insufficient evidence from which to

conclude that Management erred when it concluded that grievant did not

demonstrate the extraordinary levels of accomplishment and contribution

required to earn a CSA....� and further concluded that he did not perform

at the same or better level than the comparators.

With respect to grievant's individual disparate treatment claims, although

the initial inquiry in a discrimination case usually focuses on whether

the grievant has established a prima facie case, following this order

of analysis is unnecessary when the agency has articulated a legitimate,

nondiscriminatory reason for its actions. See Washington v. Department

of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,

the inquiry shifts from whether the grievant has established a prima

facie case to whether he has demonstrated by a preponderance of the

evidence that the agency's reasons for its actions merely were a pretext

for discrimination. Id.; see also United States Postal Service Board

of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

The agency explained that grievant was not selected for a CSA because his

work was not considered as outstanding as that of others. Evidence of

record does not establish that grievant's qualifications for the award

were plainly superior to that of those who did receive a CSA. The record

reflects that the co-workers to whom grievant compared himself showed

more initiative, were resourceful, contributed more, were capable of

multitasking, and had exceptional accomplishments. Moreover, to the

extent that grievant attempted to use statistical evidence to prove

pretext, the Commission finds that the generalized statistics presented,

without more, were insufficient to rebut the agency's articulated

non-discriminatory reason for not selecting grievant for the award.

Therefore, the Commission agrees with the Arbitrator that complainant has

not shown, by a preponderance of evidence, that the agency's articulated

reasons for the decisions made were a pretext for discrimination.

The Commission notes that grievant also attempted to raise a claim

of disparate impact. In general, to establish a prima facie case of

disparate impact, grievant must show that an agency practice or policy,

while neutral on its face, disproportionately impacted members of

the protected class. This is demonstrated through the presentation

of statistical evidence that establishes a statistical disparity that

is linked to the challenged practice or policy. Watson v. Fort Worth

Bank and Trust, 487 U.S. 977, 994 (1988) (complainant must present

�statistical evidence of a kind and degree sufficient to show that the

practice in question has caused the exclusion�). Specifically, grievant

must: (1) identify the specific practice or practices challenged; (2)

show statistical disparities; and (3) show that the disparity is linked

to the challenged practice or policy. Id. The burden is on grievant

to show that �the facially neutral standard in question affects those

individuals [within the protected group] in a significantly discriminatory

pattern.� Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines

v. Department of the Navy, EEOC Petition No. 03990119 (August 31, 2000).

After careful consideration of the entire record, the Commission

finds that grievant, who carries the initial burden of proof, has

failed to provide sufficient evidence to establish a prima facie case of

disparate impact in this matter. The statistics provided by grievant were

generalized, vague and insufficient to show that an identified practice

of the agency caused the exclusion of members of her protected class.

Basically, the grievant relied on the statistics and testimony provided

in the grievance of another employee who also filed an appeal with the

Commission. The Commission has addressed those statistics and found them

to be insufficient for the claim of disparate impact. See Himel v. FDIC,

Appeal No. 02A60008 (April 6, 2006).

Therefore, after a careful review of the record, including grievant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the Arbitrator's

decision finding no discrimination in this matter.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the grievant 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

May 19, 2006

__________________

Date