Esther M. Foster, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 7, 1999
02970027 (E.E.O.C. Sep. 7, 1999)

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.