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