0220140009
06-09-2016
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tena C.,1
Grievant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0220140009
Agency No. DF-2012-R-0003
DECISION
On February 11, 2014, Grievant filed an appeal from an arbitration decision dated January 9, 2014, concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 Claims Representative at the Agency's Field Office in Conway, Arkansas.
On November 18, 2010, Grievant filed her internal grievance alleging that the Agency discriminated against her on the bases of age (over 40) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when, on November 1, 2010, she was issued her Performance Assessment and Communication System rating of "Successful" for FY 2010. The grievance was denied at Step 1 on December 27, 2010. The Step 2 decision was issued on April 12, 2011. Finally, the Step 3 decision was issued on September 8, 2011.
Following the Step 3 decision, Grievant invoked arbitration. A hearing was held on June 19 and 21, 2013 and September 11, 2013. The Arbitrator issued his decision on January 9, 2014.
The Arbitrator noted that there were three levels of performance appraisals, Level 1 or unsatisfactory; Level 3 is high standard; and Level 5 which is for the outstanding level of performance. The Arbitrator determined that Grievant received all Level 3 in her appraisal at issue. The Supervisor indicated that Grievant's performance in FY 2010 was that of a solid Level 3 employee. The Arbitrator held that Grievant failed to provide any evidence to support her claim of discrimination based on age or unlawful retaliation. The Arbitrator concluded that the Agency provided legitimate, nondiscriminatory reasons for Grievant's performance appraisal. As such, the Arbitrator found that Grievant failed to establish her claims of unlawful discrimination.
This appeal followed. Grievant asserted that she provided evidence to support an inference of discrimination by pointing to the Level 5 definitions and asserting that she met the standards for an "Outstanding" appraisal. As such, Grievant argued that the Agency's reasons for the appraisal were not credible. Therefore, Grievant asked that the Commission find that she was subjected to unlawful discrimination. The Agency requested that the Commission affirm the Arbitrator's decision.
ANALYSIS AND FINDINGS
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 Federal Labor Relations Authority (FLRA) on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised. The Commission will only review that portion of the decision which pertains to the Grievant's employment discrimination claim, as it does not have jurisdiction over any alleged violations of the Collective Bargaining Agreement. See 29 C.F.R. � 1614.301(a).
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Upon review of the record, we find that Grievant failed to establish a prima facie case of discrimination based on age and/or in retaliation. Grievant asserted that she did not have to rely on comparator evidence. We note that Grievant is correct. However, she has to provide some evidence or facts that give rise to an inference of discrimination. Grievant has not done so. Therefore, we conclude that Grievant has not shown that the performance appraisal constituted unlawful age-based discrimination and/or retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Arbitrator's decision finding no discrimination is AFFIRMED.
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
June 9, 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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