02970027
09-07-1999
Esther M. Foster, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Esther M. Foster v. Department of the Army
02970027
September 7, 1999
Esther M. Foster, )
Appellant, )
)
v. ) Appeal No. 02970027
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
On September 9, 1997, Esther M. Foster (the appellant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final (third-step) agency decision dated August 20, 1997,
concerning her grievance filed against the Department of the Army
(the agency) dated July 3, 1997. In her grievance, appellant alleged
that the agency discriminated against her in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency unlawfully discriminated
against appellant based on race (black), color (black) and reprisal
(prior EEO activity) when she did not receive the correct performance
rating on her annual evaluation.
BACKGROUND
Appellant filed a grievance on July 3, 1997, regarding the performance
rating she received on her annual evaluation. Appellant was employed
by the Army Corps of Engineers as a Procurement Technician (GS-5) in
the Business Support Branch, Contracting Division. In her grievance,
appellant alleged that she did not receive the correct performance rating
on her annual evaluation. The evaluation listed her performance as
Fair, Level 4,<1> and appellant argued that the rating was "unjustified
and discriminatory," that the basis used to support the rating was
"erroneous," and that she had not been properly counseled on the
deficiencies in her performance. She argued that the low rating was
due to discrimination based on her race and color, and on reprisal,
and had contributed to a racially hostile work environment. Appellant
was seeking as relief: 1) to have her rating changed to a Successful,
Level 1; 2) to have all negative comments removed from her evaluation
form; 3) an acknowledgment that her civil rights had been violated; 4)
the removal of her supervisor "from any supervisory authority duties and
responsibilities; and, 5) $1.2 million in compensatory damages. The step
1 decision revised appellant's performance rating to reflect a rating
of Successful, Level 3, and removed from the evaluation form comments
that elaborated on why appellant needed improvement in certain areas.
Appellant appealed her grievance to the step 2 and step 3 levels.
In the third-step decision, the agency official denied appellant's
further appeal of her grievance. He did not address appellant's
allegations of discrimination, except to say that he had no evidence that
discrimination had occurred so he could not acknowledge any violation
of Title VII. The second-step and first-step decisions also did not
address appellant's discrimination allegations. This appeal followed.
Appellant did not submit any arguments in support of her appeal.
The agency response to the appeal argued that because the agency
official who decided the third-step grievance did not address appellant's
allegations of discrimination in her grievance, there is no issue present
for review by the Commission, and that the Commission has no jurisdiction
over this appeal.
ANALYSIS AND FINDINGS
The Commission's regulations, in conjunction with 5 U.S.C. �7121(d)
of the Civil Service Reform Act, provide that where a negotiated
grievance procedure permits an allegation of discrimination to be
raised and considered, an employee wishing to raise an allegation of
discrimination must elect the forum in which to pursue the matter. Thus,
such a complaint of alleged employment discrimination may be raised under
either the statutory procedure (EEO process) or the negotiated grievance
procedure, but not both. 29 C.F.R. �1614.301. If the employee should
elect to raise an issue of discrimination in a negotiated grievance
procedure, the employee has the right to appeal the agency's final
decision on the grievance concerning the discrimination issue to the
Commission. 29 C.F.R. �1613.401(c).
EEOC Regulation 29 C.F.R. �1614.401(c) provides that a grievant may appeal
to the Commission from a final decision of the agency, the arbitrator
or the Federal Labor Relations Authority on a grievance when an issue of
employment discrimination was raised in a negotiated grievance procedure
that permits such issues to be raised.
The agency argued that the decision on appellant's grievance could not
be reviewed by the Commission and cited Johnson v. Equal Employment
Opportunity Commission, EEOC Request No. 05910188 (March 20, 1991)
as its authority for that argument. We find, however, that Johnson
does not control this case, as it stands for the proposition that
the Commission does not have jurisdiction to review procedural
determinations by an agency solely related to the grievance process
and the collective bargaining agreement, such as the timeliness of the
filing of the grievance or the timeliness of filings of appeals from the
original Step 1 decision. In this case, the agency failed to address
the merits of appellant's discrimination claims in the grievance at
all levels. Appellant properly elected to raise her allegations of
discrimination through the grievance process rather than the filing of
an EEO complaint. Therefore, she was entitled to have those allegations
addressed by the agency when it made its final grievance decision.<2> See
29 C.F.R. �1614.301. We find that the Commission does have the authority
to entertain an appeal on the agency's decision regarding the grievance.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For appellant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). 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). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
appellant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Department of Health and Human Services, EEOC Request No. 05900467
(June 8, 1990).
In this case, the record contained evidence that appellant had
deficiencies in her performance, such as errors in her work and
unscheduled absences. Her supervisor had compiled a list of incidents
that covered the entire span of the evaluation period (one year), and
notations of times appellant had been told that her performance needed
to be improved. The Step 1 decision upgraded appellant's rating to
Successful, Level 3. At the Step 2 appeal level, the agency official gave
appellant the opportunity to present evidence that would show that she had
performed at an exceptional level for the evaluation period in question.
Appellant did not present any evidence to show that. We find that the
agency has articulated a legitimate, nondiscriminatory reason for not
upgrading appellant's performance rating to Successful, Level 1.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the appellant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that appellant has failed to do so. Although appellant consistently
made allegations of racial discrimination throughout the course of
pursuing her grievance, she presented no actual evidence to show how
discrimination was present.
We next turn to an examination of whether appellant proved that the
agency had engaged in reprisal when it rated appellant at the Fair,
Level 4 rating. To establish a prima facie case of reprisal, an
appellant must show that: 1) she was engaged in protected activity;
2) the alleged discriminating officials were aware of the protected
activity; 3) the appellant was subsequently subjected to adverse
treatment; and 4) the adverse action followed the protected activity
within such a period of time that retaliatory motivation may be inferred.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.), affirmed 545 F.2d 222 (1st Cir. 1976);
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808 F.2d 493, 500
(6th Cir. 1987); Frye v. Department of Labor, EEOC Request No. 05940764
(December 15, 1994).
Appellant has established a prima facie case of reprisal. She had made
allegations of discrimination in previous grievances. The grievances
had been filed against the same management officials who were involved
in this grievance and so the officials were aware of her participation
in protected EEO activity. Appellant was subjected to an adverse
action when she was rated at a low level on her performance evaluation.
The adverse action was taken during the same time frame as the processing
of a previous grievance so retaliatory motivation can be inferred.
Appellant fails, however, to overcome the legitimate, nondiscriminatory
reason given by the agency for the performance evaluation rating, and
she does not show that it was a pretext for discrimination. Therefore,
appellant has not proven that she was subjected to discrimination based
on reprisal.
Accordingly, the decision of the agency is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
September 7, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The rating scale levels were: Successful, Levels 1, 2 or 3; Fair,
Level 4; and, Unsuccessful, Level 5.
2 The agency is reminded that when allegations of discrimination arise
in the grievance process, it is required to address those allegations.