0120082500
09-28-2009
Cledith M. Jones, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Cledith M. Jones,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120082500
Agency No. EEODFS-07-0206-F
DECISION
On May 2, 2008, complainant filed an appeal from the agency's April 18,
2008 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency properly found that complainant
had not been discriminated against on the basis of disability.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Contact Service Representative, GS-11, at the agency's
Internal Revenue Service, Wage & Investment Service Center, Accounts
Management facility in Overland Park, Kansas. Complainant retired from
the agency on April 2, 2005.
On February 14, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of disability (carpal tunnel
syndrome) when:
1. on an unspecified date, she did not receive compensation for time
lost from work due to a workplace injury;
2. on or about September 30, 2002, she did not receive a performance
award for Fiscal Year 2002;
3. on or about September 30, 2003, she did not receive a performance
award for Fiscal Year 2003; and
4. on or about September 30, 2004, she did not receive a performance
award for Fiscal Year 2004.
In a letter dated April 4, 2007, the agency partially accepted
complainant's claim for investigation. The agency dismissed claim 1 due
to untimely EEO Counselor contact. Complainant's initial EEO Counselor
contact was on November 20, 2006. Under 29 C.F.R. � 1614.107(a)(2), a
complaint shall be dismissed for failure to comply with the time frame at
29 C.F.R. � 1614.105(a), which provides that a complainant must contact
an EEO Counselor within 45 days of the alleged discriminatory event.
The agency found that as recently as March 9, 2006, complainant had been
informed that the agency had denied her request to buy back leave used
in connection with her Office of Workers' Compensation Programs (OWCP)
claim in April 2001. Her EEO Counselor contact was therefore beyond
the 45-day time frame. With respect to claims 2, 3, and 4, complainant
maintained that she did not have reasonable suspicion of discrimination
until November 9, 2006. Therefore, the agency accepted these claims
for investigation.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request for a decision on the record, the agency issued
a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged. The agency, assuming in its
analysis, without finding, that complainant is an individual with a
disability, found that complainant had failed to show a prima facie case
of disability discrimination because she had not shown that similarly
situated individuals, not of her protected group, were treated more
favorably. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions on appeal. The agency
requested that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
We find that the agency was correct in its determination that complainant
had failed to show a prima facie case of disability discrimination
because she had not shown that similarly situated individuals, not of her
protected group, were treated more favorably. Assuming, without finding,
that complainant could show that she is an individual with a disability
and therefore covered by the Rehabilitation Act, we find that the record
shows that other agency employees in complainant's position who were
not disabled did not receive performance awards in the relevant years.
Although the agency did not proceed in its analysis of the complaint
under the three-part McDonnell Douglas evidentiary scheme, we find
that the record shows that, assuming complainant had put forth a prima
facie case of disability discrimination, the agency had a legitimate,
nondiscriminatory reason for its actions. In each of the relevant years,
complainant's performance ratings did not warrant the granting of a
performance award. For Fiscal Years 2002 and 2003, complainant was
rated as "Met" expectations, and in fiscal Year 2004, complainant was
placed on a 60-day Opportunity to Improve Period. We note that there is
no evidence that complainant filed EEO complaints regarding her actual
performance ratings. Complainant has not shown that the agency's reasons
were pretext for discrimination.
CONCLUSION
After a thorough review of the record, and in absence of specific
arguments submitted by the parties in support of or in opposition to the
appeal, we find that the agency's conclusion that complainant has not
shown that she was discriminated against based on disability was correct,
and we AFFIRM the agency's finding of no discrimination.
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
_______09/28/09___________
Date
1 We affirm the agency's dismissal of claim 1 on this basis.
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2
0120082500
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120082500