0220150001
03-10-2017
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Danita P.,1
Grievant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0220150001
Agency Nos. DF-2012-R-0021; DF-2012-R-0025; and DF-2013-R-0022
DECISION
On September 12, 2014, Grievant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 14, 2014, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Grievant worked as a Claims Representative at the Agency's facility in Pine Bluff, Arkansas.
At the time, the Agency and the American Federation of Government Employees, Local 2505 (the Union) were operating under the provisions of the National Agreement (the Agreement). In 2006, the Agreement had a system for assessing employee performance entitled "Performance Assessment and Communications System" (PACS). The PACS provides an absolute process for employees to be rated annually in four elements: Interpersonal Skills, Participation, Demonstrates Job Knowledge and Achieves Business Results. Three appraisal ratings for each the four critical elements are offered in PACS: Level 5 - Sustained Outstanding Performance; Level 3 - Fully Successful Performance; and Level 1 - Unsuccessful. The PACS appraisal period is one year and is from October 1 through September 30 of each fiscal year. In Accordance with Article 21 of the Agreement, employees are to receive an initial discussion at the beginning of each Fiscal Year and receive a midterm performance discussion regarding progress to date.
On October 26, 2010, Grievant filed her step one grievance alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (over 40), and reprisal for prior protected EEO activity when, she received a level 3 (successful contribution) performance rating for FY 2010. Grievant believed she should have received all level 5's in her appraisal. On September 28, 2011, the Agency issued its grievance decision finding no violation of law or the National Agreement regarding the evaluation. Grievant pursued her claims through the Step 2 and Step 3 greivance process. At each Step, the Agency determined that Grievant failed to establish her claims of violation of National Agreement or discrimination law.
Subsequently, Grievant received her performance appraisals in October 2011 and October 2012. Grievant similarly filed grievances alleging discrimination with respect to her appraisals. The Agency found in each appraisal that Grievant failed to show that she was subjected to discrimination and/or violation of the National Agreement. Therefore, Grievant filed a request for arbitration for the appraisals received in FY 2010, FY 2011, and FY 2012. The matters were consolidated for a hearing that was held from January 29, 2014 to January 31, 2014. The Arbitrator issued his decision on August 14, 2014.
The Arbitrator noted that in FY 2010 and FY 2011, Grievant received Level 3 ratings for all four elements while in FY 2012, she received the Level 3 rating in three of the four elements. He noted that Grievant alleged that the Supervisor illegally discriminated against her on the bases of race, sex, age, and in reprisal. The Agency maintained that the management followed proper procedures under the PACS performance appraisal system and did not subjected Grievant to discrimination.
The Arbitrator noted that there were numerous documents submitted to the record two and a half days of evidentiary hearing which included witness testimony. Based on the totality of the arguments raised and the evidence provided, the Arbitrator came to a conclusion. He noted that Grievant's advocate (Advocate) alleged that the Arbitrator committed reversible error by not admitting evidence and testimony regarding pre-hearing settlement agreement between the parties. The Arbitrator noted that no new evidence should be offered after the hearing and the Advocate should have provided the evidence earlier in to the record. The Arbitrator also denied the Advocate's argument that he was prejudiced against the Union. Finally, the Arbitrator indicated that the Advocate moved for the Arbitrator to take an adverse inference against the Agency. The Arbitrator found that there was ample evidence provided during the hearing by expert witnesses, the Supervisor and District Manager. The Arbitrator determined that the Union failed to refute any of the evidence provided by these witnesses. As such, he concluded that the Agency had successfully rebutted Grievant's claims regarding her performance appraisals. Furthermore, the Arbitrator held that the Union failed to produce clear evidence to show that the Agency's reasons for the appraisals were pretext for discrimination. Therefore, the Arbitrator denied the three grievances.
The Advocate filed an appeal with the Commission. Initially, Grievant indicated that the Arbitrator should have taken an adverse inference against the Agency for failing to produce the full record. The Advocate also attempted to establish that the Agency's rating was not supported because the Agency offered to raise her appraisal from the Level 3 to the Level 5. Grievant then requests that the Commission find that she was subjected to discrimination. The Agency asked that we affirm the Arbitrator's decision finding no age, race, sex, and/or reprisal-based discrimination.
ANALYSIS AND FINDINGS
The record shows that the Union filed its request for an adverse inference claiming that the Agency failed to provide all the evidence it relied upon to provide Grievant with the rating at issue. We find that the record was complete and the Arbitrator held a three day hearing on the 2010, 2011 and 2012 appraisals. Based on the totality of the record, we find that Grievant has not provided sufficient evidence to disturb the Arbitrator's decision to deny the Union's request for an adverse inference.
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may appeal to the Commission from a final decision of the Agency, the Arbitrator, or the FLRA on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised. We find that the Commission has jurisdiction over Grievant's appeal as it concerns the Arbitrator's finding that she was not subjected to discrimination when the Agency did not rate her at Level 5 across all categories in her FY 2010, FY 2011, and FY 2012 appraisals.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For grievant to prevail, she must first establish a prima facie case 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 Tx Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the grievant 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 Ctr. v. Hicks, 509 U.S. 502 (1993).
Assuming Grievant has established a prima facie case of discrimination on all raised bases, the Agency has nevertheless articulated legitimate, nondiscriminatory reasons for its actions. The Arbitrator held that the Agency provided more than sufficient support for its decision to rate Grievant at the Level 3 for her rating of "fully successful" for all elements in her FY 2010 and FY 2011 appraisals and Level 3 ratings for three out of four of her FY 2012 performance appraisal. The Arbitrator's decision is well-reasoned. We have reviewed the appellate arguments advanced by Grievant and the Agency. We note that the Agency's offer to raise Grievant's rating during settlement is not evidence of discrimination. We determine that Grievant has offered no persuasive arguments on appeal regarding the Arbitrator's findings. The Arbitrator properly found that the Union could not demonstrate that the Agency's reasons for its actions were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Arbitrator's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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).
GRIEVANT'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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Grievant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 10, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Grievant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0220150001
5
0220150001