0120090450
06-25-2009
Etricia A. Reese, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Etricia A. Reese,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120090450
Agency No. 200721134FAA03
DECISION
On October 27, 2008, complainant filed an appeal from the agency's
September 26, 2008 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination 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 accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At all times relevant to this complaint, complainant worked for the
agency's Air Traffic Organization (ATO) as a Program Analyst, FV-0343-11,
in the agency's Program Support Office (PSO), System Management Office
(SMO), located in Atlanta, Georgia. Complainant has been employed by
the agency since 1985.
At the ATO there are two types of yearly pay increases that employees
are eligible for. The first is the Organizational Success Increase (OSI),
similar to a presidential pay raise, which is granted to everyone in the
organization. The second type of pay increase is the Superior Contribution
Increase (SCI) which is based on a rating that the supervisor conducts
of the employee's performance each year to see if the employee has gone
beyond a "fully successful" job performance so as to merit an increase.
Complainant's office contains both bargaining-unit employees and
non-bargaining unit employees. Each is evaluated by a different set of
criteria for receiving the SCI. However, both are based on performance
above the "meets requirements" level.
As a non-bargaining unit employee, complainant's performance rating
was based on three elements which included "Collaboration," "Customer
Service," and "Contribution to Organizational Success." Complainant
also provided a "self-assessment" which was taken into consideration by
her supervisor (S1) prior to writing up a narrative and making a final
recommendation regarding a pay increase.
In fiscal year 2006, complainant received an OCI pay increase, but
was not one of the nine employees in her office to receive a SCI pay
increase. Complainant alleged that she deserved a SCI for going beyond
her regular duties and taking on the added responsibilities of being a
collateral-duty EEO Counselor, acting in the absence of the department's
Administrative Officer, and assisting in the commissioning of a fifth
runway.
Complainant also alleged that S1 did not schedule an initial/mid/final
performance discussion meeting with her for the 2006 rating period as
required. Complainant stated that S1's reasons for not granting her a SCI,
including an e-mail that complainant allegedly sent out incorrectly and
other inconsistencies, were insufficient. Complainant also stated that
she was never put on notice of any deficiencies in her performance that
would prevent her from receiving a SCI award.
Complainant further alleged that she was discriminated against because
she was the only African-American in the office, and that sex was a
factor because S1 "tried to intimate (sic) females who stand up for
themselves." Complainant also asserted that the signature listed on her
performance plans was not hers, but that the documents had been signed
by someone else on her behalf.
In contrast, S1 stated that complainant was directly involved in the
evaluation process through her self-assessments and that, although not
all of his employees received a SCI every year, the employees who received
a SCI for the 2006 rating period were heavily involved in the runway and
tower commissioning project. S1 stated that he did not believe complainant
"did anything above her job for that project." The record reflects that
the employees selected to receive a SCI played a significant role in the
commissioning of the fifth runway, and went beyond what was required in
their original job description. S1 also noted that complainant and the
Administrative Officer were backups for each other, making it common
for complainant to perform the functions that she did. S1 asserted that
he conducted several informal meetings with complainant regarding her
performance, and although such procedures were not necessarily "by the
book," there was no actual description of what form the three required
performance meetings were to take. S1 alleged that, although there were
no formal meetings with the complainant aside from an initial meeting
during the rating period, there were several performance discussions
throughout the year.
Complainant's second-line supervisor (S2) stated that he recommended
complainant for a SCI for the year 2004, not on the basis of complainant's
job performance, but because of her outside work as an EEO Counselor.
S2 stated that he hoped this incentive would "motivate" complainant.
However, he did not see any extraordinary improvements following the award
of the SCI that year. Therefore, he agreed when S1 did not recommend
complainant for a SCI in 2006.
On February 5, 2007, complainant initiated EEO counselor contact. On March
9, 2007, complainant filed a formal complaint of discrimination on the
bases of race (African-American), sex (female), and color (black) when:
1. On January 17, 2007, she learned that she did not receive a Superior
Contribution Increase (SCI), for fiscal year 2006; and
2. Her supervisor (S1) did not conduct the initial/mid-year/final
discussions regarding her performance, although the forms contained a
signature that was not hers.
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, 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.
Specifically, the agency found that complainant failed to establish
a prima facie case of discrimination, and that complainant failed to
establish that the agency's legitimate, non-discriminatory reasons were
pretext for discrimination.
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").
Complainant asserts that she was discriminated against on the bases of
race (African-American), color (black), and sex (female) when she was
not awarded a SCI for the fiscal year 2006, and S1 did not conduct the
initial/mid-year/final discussions regarding her performance. 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). She must generally
establish a prima facie case by demonstrating that 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). The prima facie inquiry may be dispensed with in
this case, however, because the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
The agency articulated legitimate, non-discriminatory reasons for its
actions. Specifically, the agency explained that a larger part of S1's
staff received SCI awards in 2006, because they worked extensively on
the newly commissioned Atlanta Airport Tower. The agency determined
that because complainant's performance for that project did not exceed
her job description, and because she did not "perform at an exceptional
level" within her job, it was not appropriate to award her a SCI that
year. Additionally, S1 stated that, although he did not formally meet
with complainant during the rating period aside from an initial meeting,
the several informal meetings held throughout the year regarding
complainant's performance were sufficient to serve in the place of an
initial/mid-year/final meeting.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, non-discriminatory reasons are pretext
for discrimination. We agree with the agency that complainant failed
to present persuasive evidence that her performance warranted a
SCI. Complainant alleged that she had no way of knowing that the
information which she e-mailed was incorrect, and that it was not up
to her to know. Complainant also alleged that she never received any
initial/mid-year/final discussions regarding her performance, and was
never put on notice of any deficiencies in her performance. Further,
complainant alleged that the signatures on her performance reports
appeared to be hers, but were not. Even assuming that all of this is
true, complainant has not established that the agency's articulated
reasons for not awarding her a SCI were more likely than not pretext
for discrimination. The record supports the agency's assertion that its
actions were based on complainant's failure to perform at a level that
exceeded her job description, and not a protected EEO basis. Complainant
continued to act only within the parameters of her job description even
in her involvement with the commissioning of the fifth runway, and made
no efforts to go above what was required of her for that particular
project. Complainant has not offered any evidence that would suggest
that discriminatory animus played a role in any of the agency's decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision, because a preponderance of the evidence in the record
does not establish that discrimination occurred as alleged.
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
June 25, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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