0220140013
11-17-2016
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Greta F.,1
Grievant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0220140013
Grievance No. DF-2012-R-004
DECISION
On October 22, 2013, Grievant filed an appeal from the Arbitrator's opinion and award dated September 23, 2013, decision concerning her grievance 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Grievant worked as a Technical Expert at the Agency's Office in Little Rock, 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.
In Grievant's 2009 rating, she received three Level 3 ratings and one Level 5 rating. She challenged the rating and her rating was changed to two Level 5 ratings. In FY 2010, the Grievant was under new supervisors (Supervisor 1, Supervisor 2, and Supervisor 3). Supervisor 1 provided her with the performance standards and expectations. In March 2010, Grievant was provided with her midyear performance discussion without numerical ratings by Supervisor 3. In May 2010, the newest supervisor (Supervisor 4) was assigned when Supervisor 3's detail ended. In October 2010, Grievant was given her rating which provided her with four Level 3 ratings and no Level 5 ratings. As such, she was rated as "fully successful."
On November 15, 2010, Grievant filed her grievance in which, among other things, she asserted that the Agency discriminated against her on the bases of sex (female) and age (over 40) when she received her "fully successful" rating for FY 2010. The matter was raised with the Arbitrator. The Arbitrator held a three day hearing on June 19, 20, and 21, 2013. Following the hearing, on September 23, 2013, the Arbitrator found that the Union had failed to meet its burden of persuasion, that the Agency provided legitimate non-discriminatory reasons for its actions, and denied the grievance.
The Arbitrator found that the Agency communicated the performance standards to the Grievant. Supervisor 3 had provided Grievant with a midyear narrative which included good comments and multiple areas in which she could improve her performance. Grievant did not ask questions nor did she inquire how she could achieve a Level 5 rating. Supervisor 3 indicated that she would not have received a Level 5 rating in any area. Supervisor 3 informed Supervisor 4 of Grievant's development. Grievant and the Union asserted that Supervisor 4 held various employees to a "higher standard" but provided no evidence to support the assertion. The Arbitrator found that the totality of the evidence indicated that Supervisor 4 explained that the Technical Experts had been improperly rated at a Level 5 in the past, but not that there were new standards. The Arbitrator noted that the "fully successful" rating is broad and covers a wide spectrum from those who are solid, experienced, fully successful but not quite "outstanding." The Arbitrator held that the weight of the evidence established that Grievant's performance was "at a solid Level 3."
The Arbitrator noted that the Union argued that the Agency's reasons were not credible and should be considered pretext for discrimination. The Arbitrator noted that the Union suggested that the lack of existing records proved pretext and that he should draw an adverse inference against the Agency as a sanction. The Arbitrator noted that the Agency produced all relevant records including those that existed at the time Grievant's appraisal was prepared. The Arbitrator held that a "memory jogger" memo was not relevant to the appraisal. Based on the totality of the record, the Arbitrator concluded that Supervisor 4 was fully qualified to write Grievant's rating and the Union failed to show that the rating was pretext for discrimination. As such, the Arbitrator determined that the Union failed to show the Grievant was subjected to discrimination based on age and/or sex.
Grievant's representative 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. 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 and/or sex-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 appraisal. 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.
The Arbitrator found to the contrary, and this is a matter of contractual interpretation and not an issue of discrimination law appropriate for our review. We also note that the Arbitrator determined that the issue of the Agency failing to comply with an information request was not properly in the arbitration since the Union had opted for recourse through an Unfair Labor Practice charge filed with the Federal Labor Relations Authority. Again, this is not an issue for our review. Finally, with regard to the Arbitrator's denial of the request to sanction the Agency for alleged destruction of evidence, we find inadequate support for a finding that the Arbitrator abused his discretion in this regard.
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 appraisal.
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." The Arbitrator's decision is well-reasoned and he properly found that the Agency met its burden of advancing legitimate, nondiscriminatory reasons for its actions. We have reviewed the appellate arguments advanced by Grievant and the Agency. We determine that Grievant has offered no persuasive arguments on appeal regarding the Arbitrator's findings. The Arbitrator properly found that the Agency met its burden of production in advancing legitimate, nondiscriminatory reasons for its actions, to which the Union could not demonstrate was 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
November 17, 2016
__________________
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.
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