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.