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