0120091574
08-05-2009
Annie M. Thomason, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Annie M. Thomason,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091574
Agency No. ARSTEWART08JAN00218
Hearing No. 410-2008-00380X-PD
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 12, 2009 final order concerning an equal
employment opportunity (EEO) complaint claiming 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.
Complainant, a retired Master Sergeant in the United States Army joined
the agency in 2001 as an intern GS-7 target 11 and began working at the
Budget and Accounting Division at Fort Stewart Georgia. Complainant
later was promoted to a Supervisory Budget Analyst, GS-12. In 2006,
she received a rating of 1, the highest rating possible rating under GS.
In April 2007 the agency changed the performance evaluation system and
a new system called the National Security Performance System (NSPS)
was implemented, beginning the first rating period from April 2007
to October 31, 2007. On June 28, 2007, complainant received from her
supervisor (white) an interim rating of excellent. However, in July
2007, an employee supervised by complainant was passed over for promotion.
In or about this period, complainant's supervisor had a heart attack
and did not work from August 3, 2007 until October 15, 2007.
Complainant's supervisor stated that from the point that the employee
supervised by complainant was passed over for promotion, complainant's
performance began to deteriorate. Upon her return from leave,
complainant's supervisor noticed several issues regarding complainant's
conduct such as that she made disrespectful comments about her. She
stated that complainant was disruptive and disrespectful during staff
meetings. She also alleged that complainant directed her subordinates
to disregard the guidance provided by her. Her supervisor stated that
because of her misconduct, complainant got an appraisal rating of 2.75
including a -1 contributing factor for supervisory responsibilities.
Complainant timely contacted an EEO Counselor and alleged that the agency
discriminated against her on the bases of race (African-American)
and color (black) in that the appraisal referenced above was
discriminatory. Informal efforts to resolve the matter were unsuccessful
and complainant filed a formal complaint on January 25, 2008.
Following an investigation by the agency complainant was given the
choice of either a final agency decision (FAD) or a hearing before the
EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ
conducted a hearing on January 16, 2009.
The AJ found that the agency rebutted complainant's prima facie of
discrimination. However, the AJ found that complainant articulated a
legitimate, non-discriminatory reason for its actions, as the rating
was issued because of complainant's behavior toward her supervisors,
and that complainant did not establish pretext.
On appeal, complainant argues that the subject rating is impermissible,
when considered in the context of a newly implemented rating system
where the range is "1" (low) to a "5" (high), with a "3" rating being
the equivalent of a "valuable employee." Complainant argues that the
2.75 rating is construed as "less than valuable." Second, complainant
argues that the standard rating period was not followed in this case.
Third, complainant argues that non-public comments made by complainant
constitutes protected speech that cannot lawfully serve as the basis
for reprisal or retribution.
Complainant finally submits an amendment to the appeal, requesting that
the Commission take administrative notice of the criticisms leveled
against the new NSPS rating system regarding lack of fairness and
arbitrariness.
In response, the agency acknowledges that on June 28, 2007, complainant's
supervisor informed complainant that her performance was excellent,
and without issue. The agency argues, however, that complainant's
performance began to deteriorate, as the Commission has noted above; and
that the AJ's findings regard to the rating were supported by the record.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not a
discriminatory intent existed is a factual finding. See Pullman-Standard
v. Swint, 456 U.S. 273, 293 (1982).
A claim of disparate treatment is examined under the three-part
analysis first enunciated in McDonnell Douglass Corporation v. Green,
411 U.S. 792 (1973). For complainant to prevail, he 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 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
Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden complainant bears the
ultimate responsibility to persuade the fact finder by preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary's Honor Center v. Hicks, 509 U.S.502 (1993).
Our review of the record reflects that the AJ's findings are supported
by the record. Contrary to the appellate arguments by complainant, the
Commission determines that the AJ's findings were solely predicated upon
the agency's assessment that complainant's performance deteriorated after
one of her employees was passed over for promotion. Complainant has not
established that the reason provided for the 2.75 rating was pretextual.
Therefore, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the final agency order because the Administrative
Judge's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant 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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 5, 2009
__________________
Date
3
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091574