Joyce M. Ferris, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency,

Equal Employment Opportunity CommissionSep 3, 1999
01971020 (E.E.O.C. Sep. 3, 1999)

01971020

09-03-1999

Joyce M. Ferris, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency,


Joyce M. Ferris, )

Appellant, )

) Appeal No. 01971020

v. ) Agency No. 496066

)

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency, )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

her allegation that the agency violated Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted

by the Commission in accordance with the provisions of EEOC Order

No. 960.001.

ISSUES PRESENTED

The issues presented herein are whether the agency discriminated against

appellant based on sex (female) when: (1) she received a rating of

�Fully Successful� on her 1994 performance appraisal; (2) she was

denied professional training between January and May 1995; and (3)

she was denied opportunities afforded male co-workers, including: (a)

not rotating into the Acting Branch Manager/Team Coordinator positions;

(b) not participating in LAN/WAN Administrator and Application Manager

activities; (c) not attending meetings and conferences related to

job functions; and (d) not being compensated for compensatory time

and overtime.

BACKGROUND

During the period in question, appellant was employed at the agency's

facility in Des Plaines, Illinois. Appellant filed a formal complaint

in May 1995 in which she raised what have been identified as Issues 1

through 3(a)-(d). Following an investigation, appellant did not request

an administrative hearing. The agency thereafter issued a final decision

in October 1996 finding no discrimination. It is from this decision

that appellant now appeals.

Issue 1

The record reveals that appellant was hired by the agency as a Supervisory

Computer Specialist in 1992. That position was eliminated in 1994 when

appellant's unit was converted to a self-managed team. At that point,

appellant was placed into a non-supervisory Computer Specialist position.

As a result of this transition, appellant's 1994 performance appraisal

(PA) was extended to cover the period from August 1, 1993, to March

31, 1995. The PA was comprised of five elements and appellant received

ratings of �Exceptional� in two of them and �Fully Successful� in the

other three. This resulted in an overall rating of �Fully Successful.�

Appellant's position is that the PA does not accurately reflect her

performance, and, in support of that assertion, she has set forth a

number of accomplishments she believes justified a higher rating.

Appellant's supervisor (Responsible Official 1, RO 1) during the rating

period testified that appellant's rating was commensurate with her

performance. RO 1 noted that, although appellant performed successfully

with regard to a number of projects, there were others where she missed

deadlines and where her performance was not as successful. RO 1 also

addressed two of the elements in which appellant received ratings of

�Fully Successful.� Regarding the first element, �Customer Assistance,�

RO 1 explained that there were customers who did not feel they were

receiving the service they needed from appellant. With regard to the

other element, �Team Member Participation,� RO 1 did not recall receiving

feedback that would have justified an �Exceptional� rating. Additionally,

the individual who subsequently became appellant's supervisor (RO 2)

testified, �Neither [appellant's] cooperation with other team members

nor her team representation to our customers was strong.�

Issue 2

Appellant states that, although she requires technical training to remain

current in her field, she was denied such training between January

and May 1995. We note, however, that appellant has not identified a

request for training that was denied. Moreover, appellant stated in

her affidavit that she did not request training between January and

May 1995. Appellant does state that, at the time of her transition,

RO 2 �indicated that displaced supervisors transitioning to technical

roles and members forming self-managed teams would be adequately trained

and provided with appropriate Team Building opportunities.� In response,

RO 2 stated that this training had been provided.

Issues 3(a)-(d)

Appellant alleges that she has been discriminated against by being

denied certain benefits that were afforded male co-workers. First,

appellant states that she has been denied the opportunity to serve as

both Acting Branch Manager and Team Coordinator. Appellant offered no

examples regarding the Acting Branch Manager position.<0> With regard

to the Team Coordinator position, the record reveals that the members of

appellant's team originally planned to rotate into that position every

three months. In this regard, appellant was scheduled to serve in the

position between July and September 1995. Several months prior to that

time, however, the members of appellant's team voted to have one of

appellant's co-workers serve as Team Coordinator on a full-time basis.

For that reason, appellant was not afforded the opportunity to serve in

that capacity.

The second area appellant challenges is the payment of overtime and

compensatory time. In support of this assertion, appellant states that

she was not compensated for three hours of overtime because her requests

were not submitted during the pay period in which the overtime was worked.

According to appellant, male co-workers had overtime approved despite

submitting their requests during pay periods subsequent to when the

overtime was worked. In response, RO 2 stated that the reason appellant

had been denied overtime was because she did not receive prior approval.

In this regard, RO 2 explained it is division policy that both overtime

and compensatory time have to be approved ahead of time.

Finally, appellant alleges that she was treated differently by not being

allowed to either participate in LAN/WAN Administrator and Application

Manager activities or attend meetings and conferences related to job

functions. We note, however, that appellant did not address either

of these allegations in her affidavit and did not otherwise elaborate

on them.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. Appellant has the initial burden

of establishing a prima facie case of discrimi-nation. If appellant

meets this burden, then the burden shifts to the agency to articulate

some legitimate, nondiscriminatory reason for its challenged action.

Appellant must then prove, by a prepon-derance of the evidence, that

the legitimate reason articulated by the agency was not its true reason,

but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

Appellant can establish a prima facie case of discrimination based

on sex with regard to the issues in question by showing: (1) she is

a member of the protected group; and (2) she was treated differently

than a similarly situated nonmember of her protected group. See Potter

v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1975).

Appellant has clearly satisfied the first element of the analysis.

With regard to the second element, the Commission finds sufficient

evidence to conclude that appellant has satisfied it with regard to

Issues 1, 3(a), and 3(d). We are not persuaded, however, that appellant

has satisfied that element with regard to Issues 2, 3(b), and 3(c).

Specifically, aside from her bare allegations, appellant has offered

nothing to suggest that she was disadvantaged with regard to training,

LAN/WAN Administrator and Application Manager activities, or meetings

and conferences related to job functions. Accordingly, we find appellant

has not established a prima facie case with regard to those issues.

Because appellant has established a prima facie case with regard to Issues

1, 3(a), and 3(d), the agency has the burden of articulating legitimate,

nondiscriminatory reasons for the challenged actions. Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). We find that

the agency has met this burden. Regarding Issue 1, RO 1 indicated that,

as a result of appellant's performance on certain projects and in certain

areas, she did not deserve a rating higher than �Fully Successful.� With

regard to Issue 3(a), it was explained that the reason appellant did not

get to rotate into the Team Coordinator position was because the members

of her team decided to have just one individual serve in that position

on a full-time basis. Finally, RO 2 explained that the reason appellant

was denied overtime was because she had not obtained prior approval.

At this point, appellant bears the burden of establishing that the

agency's articulated reasons are a mere pretext for discrimination.

Appellant can do this either directly, by showing that a discrimi-natory

reason more likely motivated the agency, or indirectly, by showing that

the agency's proffered explanation is unworthy of credence. Id. at 256.

In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme

Court held that a fact finder is not required, as a matter of law, to

find discrimination whenever it finds that the employer's explanation is

not credible. The Court further made clear that a fact finder may find

discrimination in such circumstances. The critical factor is that a fact

finder must be persuaded by the complainant that it was discrimination

that motivated the employer to act as it did. According to the Court,

it is not sufficient "to disbelieve the employer; the fact finder must

believe the plaintiff's explanation of intentional discrimination."

Id. at 519 (emphasis in original).

Regarding Issue 3(a), appellant has offered nothing in the way of either

argument or evidence which suggests that the agency's articulated reason

is pretextual. With regard to Issue 3(d), appellant's only assertion

is that other employees had requests for overtime approved for work

performed in previous pay periods. RO 2 explained, however, that the

reason appellant's request was denied was because she had not received

prior approval to work the overtime in question. Finally, although

appellant disagreed at length about her �Fully Successful� rating, we find

that this disagreement, by itself, is not sufficient to establish pretext.

In so finding, we note, in particular, that appellant has not demonstrated

that her performance with regard to the �Customer Assistance� and �Team

Member Participation� elements of her appraisal merited ratings higher

than �Fully Successful.� Accordingly, the Commission finds appellant

has not established that she was discriminated against with regard to

Issues 1, 3(a), and 3(d).

Finally, appellant alleges that the incidents set forth in Issues 3(a)

through 3(d) constitute a pattern of discriminatory harassment based

on her sex. Not only has appellant failed to demonstrate that these

incidents were related to her sex, but she has not demonstrated that

they were "sufficiently severe [and] pervasive to alter the conditions

of [her] employment and create an abusive working environment." Harris

v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, we find

appellant has not established that she was discriminatorily harassed.

CONCLUSION

Based on a review of the record and for the reasons cited above, it is

the decision of the Commission to AFFIRM the FAD and find appellant has

not established that the agency discriminated against her as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

09-03-99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations 01 It appears from the record

that appellant would only have served in that capacity while

she was still in her supervisory position. Not only does that

period pre-date the events encompassed in appellant's complaint,

but RO 2 recalled that appellant had, in fact, been afforded

opportunities to serve as Branch Manager when RO 1 was absent.