Deborah K. Reid, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 2, 2009
0120092406 (E.E.O.C. Nov. 2, 2009)

0120092406

11-02-2009

Deborah K. Reid, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Deborah K. Reid,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120092406

Agency No. ARCETULSA07FEB00522

DECISION

On May 5, 2009, complainant filed an appeal from the agency's April 2,

2009 final decision concerning her equal employment opportunity (EEO)

complaint alleging reprisal for prior EEO activity in violation of

Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e 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.

ISSUES PRESENTED

Whether the agency discriminated against complainant on the basis of

prior protected EEO activity when management: assigned complainant a

"Level 4" performance rating; denied her a performance award; and included

bullet-comments in her performance appraisal.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as an Information Technology (IT) Specialist, GS-2210-09, with the Corps

of Engineers, Information Management Office (IMO), Tulsa, Oklahoma.

Complainant's position description includes providing technical support

to users of computer services, analyzing and resolving user problems

relating to computer and telecommunications services. Complainant was

also responsible for ensuring that customer hardware and software data

was backed up and networks were protected from virus and hacker threats.

On March 3, 2006, complainant contacted the EEO Office, alleging

non-sexual harassment against her supervisor (S1). The records shows,

however, that complainant did not file a complaint. In her present case,

complainant alleges discrimination for her prior EEO activity when: (1)

On February 6, 2007, S1 refused to upgrade her Level 4 (Fair) performance

evaluation for the period November 1, 2005, through October 31, 2006;

(2) she was denied a performance award of $1,200 for the period ending

October 31, 2006; and (3) S1 included inappropriate bullet comments

in Part V (Values) on the performance appraisal for the rating period

ending October 31, 2006.

The record indicates that all agency employees in the System

Administrative level, which included the complainant, were required

under agency policy to attend a System Administrator Security (SA)

course within their first year of assignment as an Administrator.

The SA course provided training relevant to complainant's position as

an IT Specialist, to include security training necessary to protect the

computer systems from security threats. The agency states that the

course covered information comprising 60-70 percent of complainant's

job duties. The agency contends that complainant had been encouraged

to take the course over a period of approximately two and a half years.

Finally, the record shows that complainant was given a deadline to attend

the course, or otherwise be relieved of her SA duties. Complainant did

not attend the course by the deadline issued from agency management.

Complainant contends that the SA course should not have been taking

into consideration in her performance evaluation. Complainant alleges

that she received a rating of "Exceeded" on every element except for

the training objective, and therefore her job performance warranted a

performance rating higher than "Fair."

Complainant alleges that she was unable to complete the SA course

for medical reasons. However, the record indicates that complainant

did not provide management with medical documentation. The record

also indicates that complainant did not provide facts indicating that

comparator employees who had not engaged in protected EEO activity

were treated more favorable. The agency maintains that complainant

was given multiple opportunities to attend the course, which is offered

approximately 30-40 times a year at various locations around the country.

The agency also maintains that complainant was informed that should she

not pass the course, she would be given an opportunity to re-take it.

Finally, the contends that complainant was given an extensive time

allowance, including 80 hours of course preparation study time, to

prepare for the SA course.

With regard to issue (2), the record indicates that the performance reward

was awarded at the discretion of management based on the respective

employee's job performance. S1 stated that according to agency policy,

in order to receive a performance reward, an employee was required to

receive a rating of "Fully Successful" or higher. The record indicates

that complainant received the same award, $800, as other comparatively

situated employees. Complainant contends that she was entitled to

$1,200; however, complainant does not provide facts in support of this

contention.

In regard to issue (3), the record shows that S1 noted in the performance

evaluation, "if she [complainant] did not complete the [SA] training,

the duties would be removed from her." S1 contends that based on

complainant's non-completion of the SA course, he was required to make

a notation on her performance evaluation. The record also shows that

S1 also included a bullet comment stating that complainant required

"improvement in communication." S1 stated that he included this comment

because complainant refused to speak with him without having a witness

present and would only submit status reports electronically.

On June 1, 2007, complainant filed an EEO complaint alleging that she was

discriminated against on the basis of reprisal for prior EEO activity. 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). Complainant timely

requested a hearing but subsequently withdrew her request. Consequently,

the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).

The agency issued its final decision on April 2, 2009, finding that

complainant failed to prove that she was subjected to discrimination

as alleged.

CONTENTIONS ON APPEAL

Complainant did not submit a brief in support of her appeal. In its

brief, the agency requests that the complainant's appeal be dismissed

and the final agency decision be affirmed.

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 the EEOC "reviews 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).

In this case, we assume arguendo that complainant established a prima

facie case of reprisal. Nonetheless, we find that the agency provided

legitimate, non-discriminatory reasons for its actions, for which

complainant has failed to rebut. Specifically, complainant acknowledged

that her performance standards included completion of the SA course,

which comprised information concerning 60-70 percent of complainant's

job duties. All administrators, including complainant, were required

to attend the SA course. Complainant was counseled regarding the

requirement for completing the course. Therefore, complainant was on

notice that the course was mandatory; however, complainant did not attend

the course and therefore she did not meet this performance objective.

Complainant did not inform management of any reason why she was unable

to complete the course. Accordingly, the agency appropriately took

into account complainant's non-attendance of the mandatory SA course

in her performance evaluation rating, which was assessed according to

agency guidelines applicable to all employees. Therefore, the agency

has provided a legitimate, non-discriminatory reason for assigning

complainant a "Fair" performance evaluation. In response, complainant

has not provided facts indicating pretext.

With respect to allegation (2), the record establishes that according to

Army Regulation 690-400, paragraph 2-4, "all ratees rated at Successful

Level 3 or higher are eligible for consideration for performance awards."

Complainant was rated at Level 4, and was therefore ineligible for a

performance reward as based on agency policy. Accordingly, with respect

to allegation (2), we find that the agency has provided legitimate,

non-discriminatory reasons for its action, for which complainant has

not provided any facts showing pretext.

With regard to allegation (3), the agency has shown that management's

bullet notations were made in accordance with required agency practice.

The comments related to (i) complainant's requirement to attend the SA

course; and (ii) to complainant's communication performance. Management

has shown that comment (i) was required according to agency policy.

With regard to (ii), management indicated that the comment was made on the

basis that complainant had limited face-to-face communication with S1,

and would meet only when a witness was present, and would submit status

reports to S1 electronically rather than in person. This statement speaks

to communication skills which are relevant for complainant's position,

and therefore are pertinent to complainant's performance evaluation.

Accordingly, we find that that the bullet-comments were based on

legitimate, non-discriminatory factors, for which complainant has not

provided facts indicating that the agency's reasons were a pretext for

discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we find that the

agency has provided legitimate, non-discriminatory reasons for its

actions. We find further that complainant has failed to show pretext

for discrimination on the bases of reprisal for engaging in protected

activity under Title VII. Accordingly, we AFFIRM the final agency

decision finding 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

_____11/02/09_____________

Date

2

0120092406

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120092406