Christine Edwards, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 30, 2009
0120073877 (E.E.O.C. Mar. 30, 2009)

0120073877

03-30-2009

Christine Edwards, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.


Christine Edwards,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120073877

Agency No. EEOCDFS060365F

Hearing No. 440-2007-00136X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's August 7, 2007, 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. Complainant alleged that the agency discriminated against

her on the bases of race (African-American), sex (female), age (51),

and reprisal for prior protected EEO activity under Title VII when on

April 18, 2006, she received a rating of "4" in the critical element of

Tax Law on her annual appraisal, which prohibited her from receiving a

Quality Step Increase (QSI).

The record reveals that in order to receive an "Outstanding" rating

an employee has to receive a rating of 5. QSI's are normally awarded

only to employees who receive Outstanding ratings. Complainant, a

Disclosure Specialist, GS-11, received an overall performance rating

of 4.8 because she received a rating of 4 in the area of Tax Law.

Complainant believed that she should have received a 5 in this area and

spoke with her supervisor about the matter. After some discussion a

part of the narrative portion of her rating was changed but the rating

of 4 that she received for Tax Law remained the same. The supervisor

acknowledged that complainant was a very good employee but indicated

that they had had disagreements regarding complainant's interpretation of

the law with regard to Tax Law issues. The supervisor told complainant

that she did not automatically approve QSIs and maintained that they

were discretionary based on management's assessment of performance.

The supervisor indicated that complainant had not consistently

demonstrated the performance criterion for a 5 in the area of Tax Law.

The supervisor told complainant that if she could produce work for her to

review that warranted a 5 rating she would consider changing her rating.

Complainant did not submit any supplemental materials.

The agency explained in its final agency decision that assuming arguendo

that complainant established a prima facie case of discrimination as to

all bases, the agency had articulated a legitimate nondiscriminatory

reason for its actions, namely, that complainant did not consistently

demonstrate the performance criterion for a rating of 5 in the critical

element of Tax Law so she was not awarded a QSI. The FAD found that

complainant failed to show that the agency's reasons were pretext for

discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision.

The Commission agrees that even if we assume arguendo that complainant

established a prima facie case of reprisal and discrimination as to race,

age, and sex, the agency articulated legitimate nondiscriminatory reasons

for its action, namely that a QSI is not automatically given and that it

is based on the consistent demonstration of performance, and complainant

did not meet this criterion in the area of Tax Law. Finally, we find

that complainant has not demonstrated in any manner that the agency's

legitimate nondiscriminatory reasons were pretext for discrimination.

We find that the record does not support complainant's contention that

her race, age, sex, or prior EEO activity were considered with regard

to her performance appraisal. Accordingly, we find the preponderance of

the evidence of record does not establish that discrimination occurred.

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

03/30/09

__________________

Date

4

0120073877

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013