01990569
01-16-2002
Evelyn B. Cherry, Complainant, v. Michael K. Powell, Chairman, Federal Communications Commission, Agency.
Evelyn B. Cherry v. Federal Communications Commission
01990569
January 16, 2002
.
Evelyn B. Cherry,
Complainant,
v.
Michael K. Powell,
Chairman,
Federal Communications Commission,
Agency.
Appeal No. 01990569
Agency No. FCC-EEO-97-3
DECISION
INTRODUCTION
Complainant initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful 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. Complainant alleged in her complaint that she
was discriminated against by the agency during the period of April,
1992 through April, 1997 on the bases of her race (Black) and sex
(female), and in reprisal for her prior equal employment opportunity
(EEO) activity, when it:
(1) deceived and willfully obstructed her from competing for employment
enhancement;
discriminated against her based on personal conduct which was not adverse
to her job performance;
(3) gave unauthorized preference or advantage to another employee or
group of employees;
hampered the work and flow of the mission of the agency by excluding,
ignoring, and overlooking her as compared to other employees because of
fear of career advancement in job positions or other unlawful reasons;
used her suggestions to improve and upgrade positions for another employee
or group of employees;
violated rules, laws, and regulations which directly concern the merit
system principles and other principles of federal law which directly
affected her; and
engaged in conduct which adversely affected her performance ratings and
opportunity for awards.<1>
For the following reasons, the Commission AFFIRMS the agency's FAD
finding no discrimination.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At all times relevant to the agency actions at issue, complainant was
employed as a Secretary, GS-318-06, at the agency's Office of Engineering
and Technology, Equipment Authorization Division, in Columbia, Maryland.
Believing she was a victim of discrimination as described above,
complainant sought EEO counseling and filed a formal complaint on April
21, 1994. Subsequently, complainant and the agency engaged in mediation
to resolve the complaint. The mediation efforts resulted in the parties
coming to an agreement on July 27, 1995. The agreement provided in part
that complainant would withdraw her complaint, but retain the right to
reinstate the complaint should the agency fail to abide by the terms of
the agreement. On April 8, 1997, believing the agency had failed to
abide by the agreement, complainant invoked this right and the agency
reinstated her complaint.<2>
At the conclusion of the investigation, the agency issued a final
decision. In its FAD, the agency addressed each of the claims raised
by complainant, and found each to be without merit. The agency
concluded that the claims of discrimination raised by complainant
were not substantiated by the evidence in the record of investigation.
This appeal followed.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
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).
In cases such as the instant appeal, where there is an absence of
direct evidence of discrimination, the allocation of burdens and order
of presentation of proof is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973). First, complainant
must 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. Kimble v. Department of the Navy,
EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
In order to establish a prima facie case of discrimination based on sex
and/or race, complainant must show that she is a member of a protected
group and that she was subjected to an adverse employment action. Packard
v. Department of Health & Human Serv., EEOC Appeal Nos. 01985494, 01985495
(Mar. 22, 2001). She must also show either that she was treated less
favorably than other similarly situated employees outside of her protected
group, id., or must present other, noncomparative evidence which supports
an inference that the agency was motivated by unlawful discrimination, see
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996);
EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers
Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). To establish a
prima facie case of discrimination in reprisal for prior EEO activity,
complainant must show that she had engaged in protected activity, the
alleged discriminating officials were aware of the protected activity,
she was subsequently subjected to adverse treatment, and the adverse
action followed the protected activity within such a period of time
that retaliatory motivation may be inferred. Packard v. Department
of Health & Human Serv., EEOC Appeal Nos. 01985494, 01985495 (Mar. 22,
2001) (citations omitted); see also Smithson v. Social Security Admin.,
EEOC Appeal No. 01A03598 (Aug. 23, 2001). For a prima facie case of
discrimination to be established, its constituent elements must be proven
by a preponderance of the evidence. Murphy v. United States Postal Serv.,
EEOC Appeal No. 01965398 (Oct. 16, 1998).
Applying these standards to the instant case, we cannot conclude that
complainant has met her burden of establishing by a preponderance
of the evidence that the agency actions at issue were the result of
unlawful discrimination based upon her race, sex, or prior EEO activity.
As for complainant's first claim, that the agency deceived and willfully
obstructed her from competing for employment enhancement, she stated to
the EEO investigator that the specific events behind this claim were
that she had suggested to the agency that it create the position of
Information Technician, that it develop a system for electronic filing
of applications, and that it upgrade the Application Examiner position.
Complainant further contended that she was making these suggestions as
indications of ways in which her own Secretary position could be upgraded,
as she claimed she was already performing the duties of an Information
Technician, but the agency did not implement these suggestions because
it claimed to lack sufficient funding or did not perceive a need for the
suggested changes. However, the record lacks any evidence which could
support an inference that complainant suffered unlawful discrimination
as a result of the agency's limited response to her suggestions.
Accordingly, we cannot conclude that complainant has established a
prima facie case of unlawful discrimination as to this portion of her
first claim.
She also contends that the position of Information Technician was
eventually created, at a salary grade higher than her secretarial
position, and a person not of her race was transferred into the position.
Even assuming for the sake of this appeal that complainant has established
a prima facie case of discrimination as to the agency's failure to place
her in the Information Technician position, the agency presented evidence
that complainant was in fact performing very few of the duties eventually
incorporated into the Information Technologist position, and that when
the agency created the Information Technician position, it placed an
employee other than complainant in that position as an accommodation for
that other employee's disability. Complainant presented no evidence
challenging the agency's proffered nondiscriminatory reasons for its
placement of someone other than herself into the position. Therefore,
as complainant failed to present evidence sufficient to prove that the
agency's stated reasons were pretext for unlawful discrimination, she
has failed to prove on this claim that the agency discriminated against
her based upon her race, sex, or prior EEO activity.
As for complainant's second claim, that the agency discriminated
against her based upon personal conduct which was not adverse to her
job performance, she stated to the EEO investigator that the personal
conduct at issue was her reserved and quiet personal demeanor, and her
refusal to engage in joking or other similar behavior in the workplace.
She claims that her supervisor made performance ratings based upon
these personal qualities, and that others in the workplace, of both
different and the same race and sex as complainant but who laugh and
tell jokes frequently, receive higher performance ratings as a result of
this behavior. Complainant also stated that, while she has not received
any adverse performance ratings based upon her workplace demeanor, she
has noticed that those who engage in joking and similar behavior have
received promotions, and she believes her refusal to behave similarly
should be a �plus� as far as her performance ratings are concerned.
It is not entirely clear that these allegations state a claim under
EEO law. In any event, our review of the evidentiary record reveals
that it lacks any evidence that would support an inference that the
agency discriminated against complainant based upon her race, sex,
or prior EEO activity in regard to these issues. Accordingly, she has
failed to establish a prima facie case of discrimination as to this claim.
As for complainant's third claim, that the agency gave unauthorized
preference or advantage to a particular employee or group of employees
as compared to complainant, she claims that this is a result of agency
management's lax enforcement of its employee leave policy. As a result,
while many individuals have taken advantage of the situation, complainant
has continued to adhere to the policy to her detriment. Again, the
evidentiary record lacks sufficient evidence to support the inference
that the agency has unlawfully discriminated against complainant in
failing to enforce the leave rules as she claims. It is clear that an
agency's failure to apply policies uniformly could constitute the basis of
a discrimination claim. However, complainant has failed to present any
evidence which would tend to indicate that there was any discriminatory
motive behind, or impact from, the agency's alleged light enforcement
actions or her continued adherence to the leave policy of her workplace.
Complainant's fourth claim is that the agency hampered its own work
and mission by excluding, ignoring, and overlooking her, as compared to
other employees, because of its fear of her career advancement or for
other unlawful reasons. Complainant identified three areas of agency
action pertinent to this claim. First, she reiterated her prior claims
that the agency ignored her suggestions to improve its operation, and
denied her placement in the Information Technician position.<3> She
also asserts that management failed to properly supervise employees in
regard to their duty to inform her, as timekeeper, of their attendance
and time at work. However, complainant failed to present any evidence
from which discrimination could be inferred as to management's alleged
failure to properly supervise employees as to their time and attendance
reporting obligations.
Complainant's fifth claim�that the agency used complainant's suggestions
to improve and upgrade positions for another employee or group of
employees�was also more fully described by complainant to the EEO
investigator as being based upon, as in her first and fourth claims, the
agency's failure to promote her to the Information Technician position
and failure to recognize her for the suggestions she offered to improve
the functioning of the agency. As stated above, these claims are
unsupported by the evidence of record, and complainant has accordingly
failed to establish that these agency inactions were the result of
unlawful discrimination.
The sixth claim raised by complainant is that the agency violated rules,
laws, and regulations which directly concern the merit system principles.
When asked by the EEO investigator to clarify this claim, she stated that
the agency had treated her unfairly as discussed previously regarding her
nonplacement in the Information Technician position, and that, because
some of her job duties had been the same as those incorporated into the
Information Technician position, and those same duties were included
in her performance standards but not in her position description, the
agency violated the union agreement. However, beyond this assertion,
complainant failed to present any evidence from which one could infer
that the agency's alleged actions, even if complainant's allegations are
true, were motivated by her race, sex, or prior EEO activity. Therefore,
she has failed to present a prima facie case as to this portion of her
sixth claim.
Complainant also stated as part of this claim that the agency had failed
to adhere to its own articulated policy to develop employees through
�progressive and efficient training programs,� and the job-specific
training she had received was not taken into account in her performance
appraisals, but similar training was accounted for in the performance
appraisals of another secretary in her office.<4> Complainant's
supervisors, while disputing that the agency had any affirmative duty to
provide complainant with training not related to her job duties, stated
that she had been offered an opportunity to receive paralegal training
in response to her expressed interest in that field and despite the fact
that such training would have little bearing on her secretarial duties at
the agency. Complainant withdrew from the training without notifying the
agency she had done so. Complainant's supervisors also stated that, while
the job-specific training received by complainant had been disregarded
for performance appraisal purposes, this was because the training she had
received was mandatory for all the secretaries in the office and therefore
was not included in anyone's performance appraisals. They also provided
that the references to training included in one secretary's performance
appraisal was included not because that secretary had merely undergone
the training, as had complainant, but because that secretary had also
become a trainer of that particular subject and therefore her training
activities had become part of her job performance.
In light of the evidence presented, we cannot conclude that complainant
has established a prima facie case as to her claim that she has been
discriminated against by the agency's failure to adhere to its policy
of providing training to its employees. Assuming she has established
a prima facie case as to the remaining components of this claim, the
agency has met its burden of articulating legitimate, nondiscriminatory
reasons for its actions, and complainant has failed to present evidence
sufficient to prove these explanations are pretextual. See Burdine,
450 U.S. at 253. Accordingly, complainant has failed to carry her burden
of proof on this claim. See id.
Complainant's final claim, that the agency engaged in conduct which
adversely affected her performance ratings and opportunity for awards,
was further expanded upon to the EEO investigator to include claims that
agency management failed to support her in carrying out her job duties,
that the agency failed to take into account in her performance appraisals
the personal development courses she had previously taken outside
the agency, such as mediation and employment discrimination courses,
that she has performed at the same level as the other two secretaries
in her division but has received lower performance ratings, and that
the engineers in her branch receive higher salaries and performance
evaluations, resulting in greater opportunities or benefits than she
is accorded. The agency responded to these allegations by providing
evidence that complainant's supervisors both consider her to not need
additional support for the performance of her duties, but that they
have nonetheless tried to give her additional support in light of her
expressed concerns on this issue. The supervisors also stated to the
EEO investigator that they did not include in complainant's performance
appraisals the personal development courses she had taken because the
courses had no bearing on her secretarial duties. As for complainant's
claim that other secretaries, not of her race, had received higher ratings
that herself, the supervisors stated that this was simply because the
other secretaries had performed on a higher level, and with greater
initiative, than had complainant.
We conclude that complainant failed to establish a prima facie case as
to her claim that the engineers receive greater benefits than herself,
as she has failed to present comparative or other evidence which would
support an inference that her race, sex, or prior EEO activity had
any relation to the disparity between her secretarial position and the
engineer positions in her office. As to her remaining claims, she offered
no additional evidence contesting the reasons presented by the agency, and
therefore has failed to prove that the agency's reasons are pretextual.
Thus, complainant has failed to prove discrimination as to the seventh
claim in her complaint.
In conclusion, after a careful and thorough review of the evidentiary
record, including complainant's contentions on appeal, and arguments and
evidence not specifically addressed in this decision, for the foregoing
reasons we affirm the FAD finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 16, 2002
Date
1 We note that complainant's claims as presented in her formal complaint
were more fully developed and clarified during the EEO investigation
process. We will address each claim, as expanded upon by complainant
to the EEO investigator, in greater detail below.
2 At the time of the initial filing of the complaint in 1994, as well
as the 1997 reinstatement of the complaint, complainant only raised the
first six of the claims listed above. In its October 2, 1997, letter
to complainant notifying her of its acceptance of the complaint, the
agency added the seventh claim, stating that this claim had been raised
by complainant during intervening discussions with the agency.
3 As these claims have been discussed above, we will not address them
further in this decision.
4 Complainant also reiterated her claim regarding the agency's lax
enforcement of its leave policies and the detrimental affect this has
on complainant because of her abiding by the leave rules.