01a55166
04-20-2006
Janie McKnight-Roberts, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.
Janie McKnight-Roberts v. Equal Employment Opportunity Commission
01A55166
April 20, 2006
.
Janie McKnight-Roberts,
Complainant,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 01A55166
Agency Nos. 002002-50-HU; 2004-00025
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.<0>
The record reveals that complainant, a Budget Analyst GS-9 at the agency's
Houston District Office, filed formal EEO complaints on September 11,
2003 and December 3, 2003. She alleged that the agency discriminated
against her on the bases of her race (African-American), sex (female), age
(43 at the relevant time), and in reprisal for prior EEO activity when:
(1) she was not selected for the position of Investigator, GS 5/7;
she did not receive a performance rating of �outstanding� for the rating
period October 2002 to September 2003;
she did not receive a cash or �time-off� award for the 2002-2003 rating
period;
she was detailed to a lower level position of Investigator Support
Assistant, GS-7 in 2004.<0>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.<0>
The AJ concluded that complainant established a prima facie case
of race discrimination because complainant was rated as one of the
best qualified candidates, she was referred for consideration but
was not selected, and the employee selected was not a member of
complainant's protected class. The AJ concluded, however, that the
agency did not select complainant because the selecting official (S/O)
had heard concerns from complainant's supervisor regarding her writing
abilities and her interpersonal communications. S/O stated that she
personally observed that complainant was not engaging with other people
and rarely spoke to her in the office. It was S/O's view that having
good interpersonal skills was important in the job of an investigator.
The AJ also noted that complainant's supervisor (S1) found extensive
grammatical and spelling errors in complainant's e-mail messages.
The AJ rejected complainant's contention that S/O had a pattern of not
selecting African-Americans for investigator positions particularly when
such candidates were from within the Houston District Office. Instead,
he found that S/O had hired 14 African-American investigators out of a
total of 34 selections during her tenure as District Director. The AJ
found that the fact that selections may have been made from outside the
office was not indicative of discrimination.
Turning to complainant's claim of reprisal, the AJ found that there was
no dispute that all of the managers named in the complaint were aware
of complainant's prior protected activity. He found, however, that the
actions at issue were not necessarily adverse such that they could be
considered retaliatory in nature. Even assuming complainant established
that the actions were adverse employment actions, the AJ found that the
agency presented legitimate non-discriminatory reasons that complainant
failed to rebut. For example, S1 stated that she gave complainant
a proficient rating in the area of individual accountability because
complainant seemed to lack enthusiasm for her work and more often than
not, referred questions to S1 rather than address them herself. S1 was
newly responsible for complainant's rating for the year in question as
it had previously been done by the Deputy Director. She stated she was
not influenced by S/O or anyone else in her evaluation of complainant's
performance.
Regarding cash and �time off� awards , the Acting District Director (S2)
stated that he had limited award money to give to employees. He decided
to give the limited award money to employees at the GS-7 level and below.
Since complainant was a GS-9, she was above the cut-off mark which
he established and for that reason and that reason only, she did not
receive an award. The record contained an e-mail which corroborated
S2's statement.
Finally, the AJ found that the agency had legitimate reasons for
temporarily detailing complainant to the investigator support assistant
position including the fact that there was a back log of charges that
needed to be processed. S1 recommended complainant for the detail in
part because her grade level would allow her to be detailed without a
change in salary. Moreover, complainant could be detailed for a longer
period of time without having to announce the position for competitive
appointment. In sum, the shortfall of resources could be addressed most
efficiently by detailing complainant. Although complainant thought
she was being demoted, the AJ found that her salary did not change
and it was communicated to her that it was a temporary reassignment.
According to the AJ, complainant failed to demonstrate that these reasons
were a pretext for discrimination and therefore, judgment for the agency
was appropriate. The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when he found no
discrimination. Specifically, complainant argues that her qualifications
for the position were demonstrably better because she had a college
degree and training in investigative techniques. She argues that the
agency's reasons for not selecting her were not credible because S/O
did not have an opportunity to observe her oral skills aside from ten
second encounters in the hallway.
Complainant further contends that the actions of the agency after
learning of her protected activity were adverse because she received
a lower performance rating than she had received in several years.
Complainant also asserted that she had received awards in past years
for her outstanding performance and therefore, the agency's failure to
reward her performance for the year in question was in retaliation for
her protected EEO activity.
The agency responded to the appeal stating that the AJ's decision was
supported by substantial evidence in the record and should be affirmed.
In particular, the agency cited to testimony of witnesses that complainant
had been �rude� or �short� in her interactions with them. The agency
argued that the record also supported the fact that S2 had different
criteria from the previous District Director in giving cash or time
off awards. Lastly, the agency contended that the record supported that
complainant was chosen for the detail as Investigator Support Assistant
because personnel rules permitted the agency to extend the detail without
changing her pay or competing the position. The agency thus requested
that the AJ's decision be affirmed.
ANALYSIS AND FINDINGS
First we set forth the standard of review of an AJ's decision after
a hearing is held. According to the Commission's regulations, all
post-hearing factual findings by an AJ will be upheld if supported by
substantial evidence in the record. 29 C.F.R. � 1614.405(a) Substantial
evidence is defined as �such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.� Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Applying these principles, the Commission finds that the AJ's findings
of fact are supported by substantial evidence in the record and that
the AJ's decision is a proper application of the law. In her appeal,
complainant did not specifically address whether the AJ's decision met
the substantial evidence standard but only expressed her disagreement
with the outcome. This is an insufficient basis for overturning the
AJ's decision on appeal. In addition, the record supported the AJ's
conclusion that race was not shown to be a motivating factor when
agency officials took the actions that they did. Specifically, the
record supported that complainant was not selected for the position
of investigator because she had inadequate interpersonal skills based
on the testimony of a supervisory investigator and other witnesses.
The supervisory investigator confirmed that she witnessed complainant
fail to respond to S/O when S/O addressed her in an elevator.
Moreover, the record reflected that complainant failed to adequately
rebut the agency's reasons for why she did not receive an award during
the rating period in question, why she received a proficient and not an
outstanding performance evaluation, or why she was temporarily detailed.
The record reflected that complainant's rating official for the period
in question had replaced her former rating official and that she gave
specific reasons for the proficient rating. The record substantiated
that S2 based his reasons for distributing cash and time off awards
solely on the grade level of the employee and not on any considerations
regarding complainant's protected activity.
Finally, the record discloses that,as the AJ found, S1 selected
complainant for a detail for reasons related to personnel policies
and not because of her knowledge of complainant's EEO activity. Thus,
the AJ's reasons for concluding that the agency did not discriminate
against complainant are supported by substantial evidence in the record.
For these reasons, including arguments and evidence not specifically
addressed in this decision, we discern no basis to disturb the AJ's
decision. Therefore, we affirm the agency's final order.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
April 20, 2006
__________________
Date
0 1In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from
those offices charged with the in-house processing and resolution
of discrimination complaints. For the purposes of this decision, the
term "Commission" or "EEOC" is used when referring to the adjudicatory
authority and the term "agency" is used when referring to the respondent
party in this action. The Chair has recused herself from participation
in this decision.
0 2Complainant withdrew the bases of sex and age at the hearing.
0 3The AJ conducted a hearing but no separate hearing number was
assigned.