0120091477
08-19-2009
Katrina L. Webster, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Katrina L. Webster,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091477
Agency No. 08-00030-00913
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 8, 2009 final decision concerning
an 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.
During the period at issue, complainant was employed as a Secretary
(Office Assistant), GS-318-01 at the agency's Naval Sea System Command,
Strategic Systems Programs (SSP), Fire Control and Guidance Branch in
Alexandria, Virginia.
On May 4, 2008, complainant filed the instant formal complaint. Therein,
complainant claimed that the agency discriminated against her on the
bases of race (African-American) and in reprisal for prior protected
activity when:
on January 11, 2008, she received a National Security Personnel System
(NSPS) rating of Level 3 for the 2007 performance period.
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 on January 8,
2009, pursuant to 29 C.F.R. � 1614.110(b).
In its January 8, 2009 final decision, the agency found that complainant
failed to prove by a preponderance of the evidence that she was
discriminated against as alleged.
Complainant's first-level supervisor (S1) stated that he gave complainant
a rating of Level 3 for the 2007 performance period. Specifically,
S1 stated " that he evaluated complainant's performance based upon her
self assessment, my observation of her performance and the criteria
listed in the performance indicators and contributing factors described
in DOD 1400.25M." S1 stated that when he met with complainant after the
ratings were approved in December 2007, complainant "questioned why her
volunteering for SSP social activities was not part of her evaluation.
I explained to her again that no one in SSP has these volunteer activities
are not part of any position description or any NSPS performance
objective. She seemed surprised that she was not evaluated on these
voluntary functions that were not related to her job performance despite
the fact we had discussed the matter on several occasions." S1 stated
that during the mid-year evaluation, complainant mentioned to him that she
planned to devote some time planning the holiday party, summer picnic and
other smaller events as part of a command wide committee. S1 stated that
he told complainant "that while we appreciate her volunteering to assist
in organizing these events, they are not part of her job responsibilities.
I told her that it would be inappropriate to rate her on these activities
and that no one else in the command was rated on their participation in
the recreational association." Furthermore, S1 stated that complainant's
race and prior protected activity were not factors in his determination
to give her a rating of Level 3 for the 2007 performance period.
The Head of the Fire Control and Guidance Branch (H1) stated that he
noted that complainant previously received an overall rating of Level
3 for the 2005-2006 rating period. H1 stated that complainant did what
was in her performance objectives "no more or no less." With respect to
complainant's allegation that she was discriminated against by having H1
listed as her rating official when he was out of the country, H1 stated
that complainant was aware that both he and S1 would rate her performance
because he was being deployed to Iraq. H1 stated that complainant
requested to have her volunteer activities added to her performance
objective but he told her that "these are all voluntary; nobody requires
you to do, nobody even asked you to do them other than they send out a
command-wide e-mail that says would anybody like to volunteer for this.
And so that's when we had that discussion. And then she'd said, 'well,
I want to put those in my 2007 objectives,' and that's when again I said,
'I can't put those in your objectives because they're voluntary, and I'm
not requiring you to do them as part of your job. If you would like to
volunteer there's a lot of people that volunteer, but nobody gets credit
for those."
The Program Analyst (PA) stated that during the relevant time, S1 was
complainant's rating official. Specifically, PM stated that when H1 was
deployed to Iraq, she changed complainant's rating official to S1 in the
agency's Performance Appraisal Application (PAA). PA further stated that
the NSPS regulations permitted S1 to act as both the rating and reviewing
official. PA also stated that complainant was advised verbally and by an
automatic e-mail generated by the NSPS computer application that S1 would
rate her performance while H1 was deployed. PA stated that there was a
glitch in the computer application that prevented her from changing the
rating official from H1 to S1. PA confirmed S1 and H1's assertions that
volunteering for recreational activities were not part of complainant's
job and would not be included in the performance objectives.
Further, PA stated that complainant's Level 3 rating "is considered
a 'valued contributed,' that is a DOD term. Under the five rating
scale, a 1 is unsuccessful, unsatisfactory, not doing your job.
A 2 is satisfactory, but you needed some help in doing your job.
A 3 is you're doing everything that's being asked of you, or by the
way, you know, we're going to reward you for your good performance.
The majority of employees throughout DOD are a level 3." PA stated
that based on complainant's Level 3 rating for the 2007 performance,
she "received 75 percent salary, 25 percent bonus. And that was where
she received a $1,155 salary increase." PA stated that in regard
to complainant's claim that she should have been awarded a Level 5,
a Level Five rating "is a very rare rating to receive." Specifically,
PA stated that out of 1, 110 employees, only 5 received a Level 5 rating
during the relevant period. PA stated that complainant could have filed
a request for reconsideration with the pay pool if she was dissatisfied
with her rating; and she could have asked for further review by the
Performance Review Authority, whose decision is final but complainant
"did not utilize that process for her rating."
A claim of disparate treatment is examined under the three-party 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
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).
In the instant case, we find that after a careful review of the record,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the agency's findings. Therefore, after a review of
the record in its entirety, including consideration of all statements on
appeal, it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 19, 2009
__________________
Date
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0120091477
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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