Gwendolyn L. Grice, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
01A13493 (E.E.O.C. Sep. 26, 2002)

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