02a60008
04-06-2006
Agency.
C. Marie Himel v. FDIC
02A60008
April 6, 2006
.
C. Marie Himel,
Grievant,
v.
Martin J. Gruenberg,
Acting Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 02A60008
Grievance No. FMCS No. 05-50037
DECISION
The grievant timely initiated an appeal from an Arbitrator's decision
concerning her 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 and
worked at the Help Desk. 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, she filed a grievance regarding her non-selection for
an award. The matter went to arbitration and a hearing was held where
grievant raised claims of age discrimination. Thereafter, the Arbitrator
issued a decision finding there was no discrimination and denying the
grievance. Specifically, the Arbitrator found that the agency �most
assuredly used standards and criteria which were directly relevent, and
critical, to the task of evaluating employees� for a CSA. The Arbitrator
did not find that grievant's contributions were superior to those with
whom she compared herself. The Arbitrator noted that grievant did not
know the work of two people to whom she compared herself and did not
have first hand knowledge of the contributions of others.
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 she 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 that grievant was not selected for a CSA
because her work was not considered as outstanding as that as 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.
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 this
particular 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, at least on appeal, 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 argued that in DIRM 46 percent of bargaining
unit employees under the age of forty received a CSA while only 27
percent of bargaining unit employees over the age of forty received a CSA.
Hearing Transcript (HT) at 74-75, 77. Grievant, however, did not identify
the particular aspect(s) of the CSA program allegedly responsible for any
observed statistical disparity as required in the first and third steps
of the prima facie case of disparate impact. Simply identifying the
CSA program, without more specificity, does not meet grievant's prima
facie burden. Moreover, the gross statistics offered by grievant are
too broad to draw appropriate statistical conclusions that there was a
relevant statistical disparity in this case. Grievant's disparate impact
case rests almost exclusively on one statistical chart (Union Exhibit 6)
submitted by the union, with limited testimony explaining the chart.
However, the proffered chart fails to provide adequate evidence of a
statistical disparity. For example, the chart presented does not show
what percentage of those bargaining unit employees who did not receive a
CSA were even eligible for the award.<1> It is also noted that the chart
provides statistics only for bargaining unit employees, while two-thirds
of the recipients of CSAs were non-bargaining unit employees. Information
about these employees may be necessary to draw any statistically valid
conclusions about age being a factor in the awards process.
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
April 6, 2006
__________________
Date
1 The program required employees to have received at least a �Meets
Expectations� rating on their performance appraisal to be eligible for
a CSA.