01A53027
06-22-2006
Joyce Reine, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Joyce Reine,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A53027
Agency No. 020536
DECISION
On March 4, 2005, complainant filed an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint
alleging 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 deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a).
During the period at issue, complainant worked as a GS-525-7, Accounting
Technician at the Government Employees Service Division, National Finance
Center. On May 7, 2002, complainant filed a formal complaint. Therein,
complainant claimed that she was discriminated against on the bases of
race (African-American) and in reprisal for prior protected EEO activity
when the agency gave her a performance appraisal of "Superior" rather than
"Outstanding" for the performance year 2001. In support of her request
of a higher rating in her performance evaluation, complainant indicated
that her performance merited a higher rating ("outstanding rating")
because she discovered and reported to management a programming error
which, if uncorrected, would have had implications for several units in
the division. Complainant stated that her discovery of this programming
error was equivalent to the project of a co-worker who received an
"outstanding" rating in the previous year, and should have warranted an
"outstanding" rate for complainant as well.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant was not subjected
to discrimination as alleged.
In its final decision dated January 21, 2005, the agency concluded that
complainant failed to establish a prima facie case of discrimination on
the bases of race and reprisal.
The agency further found that even assuming that complainant established
a prima facie case of discrimination, complainant did not rebut the
agency's articulated legitimate non-discriminatory reason for its actions.
Complainant's supervisor stated that an "outstanding" rating required that
complainant perform a job beyond her defined duties and job description.
Complainant's supervisor stated further the identification and correction
of accounting errors was part of complainant's duties as detailed in her
position description. The supervisor further stated that "outstanding"
rating were only given for performance of a "rare, very high quality"
in all the performance elements, and that complainant's discovery of an
accounting error related only to one performance element, but that two
of complainant's critical elements did not meet the required standard.
Specifically, the supervisor stated that complainant did not meet the
standard for performance element No.1 ("communication is diplomatic,
timely, and contributes to a productive work environment) and No. 4
("perform all duties in a manner which consistently demonstrate fairness,
cooperation, and respect toward co-workers..."). The supervisor stated
that complainant engaged in "two very loud arguments" with a co-worker
which were disruptive to the workforce and, both times, required him to
intervene and counsel the employees involved.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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. See 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. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
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. See 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. See U.S. 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); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo, that complainant has established a prima facie case
of race, sex, and reprisal discrimination, we determine that the agency
articulated legitimate, non-discriminatory reasons for its actions.
Here, the agency determined that while complainant was doing a good
job, complainant did not meet the required standards in two performance
elements, and her discovery of a single accounting error did not warrant
an outstanding rating. We note that the agency asserted that it gave
complainant's co-workers the same or lower ratings than complainant,
and that complainant received more in cash awards than her co-workers.
The Commission determines that the agency articulated legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
show were pretext for discrimination.
Accordingly, we AFFIRM the agency's decision finding no discrimination.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 22, 2006
__________________
Date
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01A53027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A53027