01A13493
09-26-2002
Gwendolyn L. Grice, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Gwendolyn L. Grice v. Department of the Army
01A13493
September 26, 2002
.
Gwendolyn L. Grice,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13493
Agency No. ANDMFO0006A03
DECISION
Complainant timely initiated an appeal from a 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. For the following reasons, the Commission
affirms in part and reverses in part the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Military Personnel Clerk, GS-05, at the agency's U.S. Army Armory
Center and Fort Knox facility, in Fort Knox, Kentucky. Complainant sought
EEO counseling and subsequently filed a formal complaint on July 11,
2000, alleging that she was discriminated against on the basis of race
(Black) when:
(1) she was denied a performance award under the Civilian Incentive
Awards Program (CIAP) for which she was nominated by a co-worker in 1999;
in April 2000 she was denied the opportunity to be assigned to a two
week detail to higher graded position and the detail was given to a
White co-worker with less seniority; and
management failed to provide a re-audit of her position.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that assuming, arguendo, complainant
established a prima facie case of race discrimination, it nonetheless
articulated legitimate, nondiscriminatory reasons for its actions.
Namely, the FAD found that complainant did not receive the CIAP
performance award that her co-worker allegedly nominated her for because
management never received the nomination form. The FAD also found that
complainant was not detailed to the GS-6 position in April, 2000 as the
result of an error which it subsequently rectified. Finally, the FAD
found that as to the re-audit, complainant's third-line supervisor (S3)
had originally approved a re-audit of complainant's position, but chose
not to go ahead with it when complainant filed a formal EEO complaint
on the issue. The FAD found that S3 decided not to go forward with the
re-audit at that time so as to allow the process to run its course and to
avoid the appearance of a cover-up. The FAD concluded that complainant
failed to show that these legitimate, non-discriminatory reasons were
mere pretext to mask discriminatory animus toward complainant's race.
On appeal, complainant contends that she has been denied a re-audit
of her position despite the fact that she has been performing the
duties of a higher grade for years. Complainant also contends that
management officials have denied her performance awards she deserved,
and that she has been discriminated against on the basis of her race.
The agency requests that we affirm its FAD.
Complainant has alleged a claim of disparate treatment which is
examined under the three-part analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant 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, 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. United States 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).
Here, we find that assuming, arguendo, complainant established a prima
facie case of race discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with respect
to the performance award, the record reflects that under the rules of
CIAP, a civilian employee wishing to nominate another employee for
a performance award must complete an Employee Nomination Incentive
Award Form and submit it to the first-line supervisor of the employee
being nominated. (Transcript of Fact Finding Conference, page 53).
Complainant's first-line supervisor stated that she has no memory
of receiving such a form, and the co-worker that allegedly nominated
complainant stated that she did not remember to whom she submitted the
nomination, nor did she keep a completed copy of the nomination form.
(Transcript, page 53-56). Complainant failed to proffer any persuasive
evidence that she was not given the performance award as the result of
discriminatory animus toward her race.
As to the detail to the GS-6 position, the record reflects that
complainant's second-line supervisor (S2) declined to offer the position
to complainant because complainant had, in the past, refused to take on
additional tasks and had given the impression that she would not want
to assume the GS-6 duties. (Transcript, page 24). S2 stated that
she instead offered the detail to another employee (CW1), with less
seniority, who was enthusiastic about the prospect of additional duties.
(Transcript, page 25). When CW1 was unable to handle all of the
additional duties of the detail complainant took on some of the duties
that he was unable to complete. When it came to management's attention
that S2 had not followed procedure when she failed to offer complainant
the detail, and that complainant had been performing additional duties,
management paid complainant for forty hours of overtime in compensation
for the additional work she had performed. (Transcript, page 29).
We find that complainant has failed to profer any persuasive evidence
that she was not offered the two-week detail because of discriminatory
animus toward her race.
Finally, with respect to the re-audit of complainant's position, S3 stated
that he agreed to have complainant's position re-audited before he learned
that complainant had filed a formal EEO complaint on the issue. At that
point he decided to postpone any action so as to avoid the appearance
that he was trying to �cover-up.� (Transcript, page 18, 83-4). While we
find that complainant has failed to established that she was denied
a desk audit on the basis of her race, Title VII explicitly precludes
employers from retaliating against employees who participate in the EEO
process. Here, we find that S3's statement that he did not perform the
re-audit because complainant filed an EEO complaint on the issue amounts
to direct evidence of reprisal discrimination. EEOC Policy Guidance
on Recent Developments in Disparate Treatment Theory, No. 915.002, July
14, 1992, Section III. In light of this direct evidence, we find that
complainant was subject to reprisal discrimination when her position
was not re-audited.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm in part and
reverse in part the agency's final decision, and enters a finding of
discrimination with respect to the denial of a re-audit. The agency is
directed to take remedial action in accordance with this decision and
the Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action within 60
(sixty) days of the date this decision becomes final:
The agency shall ensure that a desk audit is performed on complainant's
position.
In the event that the desk audit results in complainant's position being
upgraded, the agency shall award complainant back pay (with interest,
if applicable) and other benefits due complainant, from the date such
upgrade would have initially been awarded. The agency shall determine
the appropriate amount of back pay with interest and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
days after the date complainant's position is upgraded. The complainant
shall cooperate in the agency's efforts to compute the amount of back
pay and benefits due, and shall provide relevant information requested
by the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency shall provide training for the management of U.S. Army Armory
Center and Fort Knox facility as to their responsibilities and obligations
under the anti-retaliation regulations under Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result
of the agency's discriminatory actions in this matter. The agency shall
afford complainant sixty (60) days to submit additional evidence in
support of his claim for compensatory damages. Within thirty (30) days
of its receipt of complainant's evidence, the agency shall issue a final
decision determining complainant's entitlement to compensatory damages,
together with appropriate appeal rights.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Army Armory Center and Fort
Knox facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 26, 2002
__________________
Date