Nancy Lopez, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 22, 2009
0120092384 (E.E.O.C. Oct. 22, 2009)

0120092384

10-22-2009

Nancy Lopez, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Nancy Lopez,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120092384

Agency No. CRSD-2007-00837

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's April 30, 2009 final decision concerning

her equal employment opportunity (EEO) complaint claiming 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 Physical

Scientist, GS-1301-9, at the agency's Office of the Chief Economist,

World Agricultural Outlook Board (WAOB) in Stoneville, Mississippi.

On June 15, 2007, complainant initiated EEO Counselor contact.

Informal efforts to resolve her concerns were unsuccessful.

On August 1, 2007, complainant filed the instant formal complaint.

Therein, complainant alleged that the agency discriminated against her

on the bases of sex (female) and in reprisal for prior protected activity

when:

1. on May 10, 2007, she was contacted by a Personnel Specialist in

the Office of Human Capital Management (OHCM) and was informed that

her supervisor wanted to put her on a Performance Improvement Plan

(PIP);

2. she did not receive her Within-Grade Increases (WGI);

3. she received several emails from her supervisor that she considered

harsh and in reprisal for her prior EEO activity;

4. she did not receive a career ladder promotion from a GS-9 to GS-11;

5. she was not recommended for a performance award in Fiscal Year (FY)

2007; and

6. she was not allowed to telecommute or given a requested reassignment.1

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 April 30,

2009, pursuant to 29 C.F.R. � 1614.110(b).

In its April 30, 2009 final decision, the agency dismissed claim 1

pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.

The agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(2)

on the grounds of untimely EEO Counselor contact. The agency then

addressed claims 1 - 6 on the merits, finding no discrimination.

The agency concluded that complainant did not show by a preponderance

of the evidence that she was discriminated against on the bases of sex

and in reprisal for prior protected activity.

Regarding claim 1, complainant's first line supervisor (S1) stated "I had

no plans to put [complainant] on a performance improvement plan. However,

I had observed performance deficiencies and was experiencing problems with

[complainant] disagreeing with my instructions as noted in the May 4,

2007 email. As a result, I sought guidance from [a named Personnel

Specialist (PS)], as our Servicing Employee Relations Specialist,

about ways to address these performance and conduct-related issues."

S1 stated that the May 10, 2007 telephone call that was made from PS to

complainant was related to an e-mail dated May 7, 2007, that I received

from complainant which he brought to the attention of PS. S1 stated that

in her May 7, 2007 e-mail, complainant made a reference to protected

activities "which prompted the decision by [PS] to call [complainant].

The May 7, 2007 e-mail from [complainant] was in response to an e-mail

that I sent to [complainant] on May 4, 2007."

The Chairperson (CP) of the WAOB stated that during the relevant

time he was aware of complainant's performance and conduct issues.

CP further stated that it was the preference of S1 and "my preference

for her supervisor to continue working with her as he had been in an

effort to improve her performance. We chose this path despite my concern

that her supervisor was spending a disproportionate amount of his time

trying to help [complainant] improve her work products and performance.

We never considered a PIP."

Regarding claim 2, S1 stated that on July 19, 2007, he first learned the

possibility that complainant may not have received her step increases

during a conversation with an EEO Counselor. S1 further stated "I

immediately contacted [a named Chief of the Labor/Employee Relations

and Litigation Branch] in Washington D.C., and requested that she

look into the matter." S1 stated that the Chief reported back to him

stating there was an error in processing complainant's step increase

"that would have been effective December 11, 2005. [Chief] assured

me that the problem would be corrected and [complainant] would be

recompensed for underpayment, including interest." S1 stated that he

then reported the latest developments to the EEO Counselor via e-mail.

S1 stated that in August 2007, he provided complainant with [Chief's]

telephone number so complainant "could directly follow-up with [Chief]

on the status of her step increase."

Further, S1 stated that there have been some new developments concerning

complainant's WGI since he submitted his affidavit in January 2008.

S1 stated that in March 2008, he received a telephone call from a

representative in the Civil Rights Services Division indicating that

there was still some confusion on complainant's WGI. S1 stated that he

then called the Director of the Departmental Human Resources Division

(D1), Office of Human Capital Management concerning complainant's WGI.

S1 stated that after speaking with D1, "we agreed to change the 'Marginal'

rating I gave [complainant] in FY2005 to "Fully Successful," to avoid

further confusion and help expedite the process of granting [complainant]

her within-grade increases to Step 4 at the appropriate time and Step

5 at the appropriate time."

Regarding claim 3, S1 stated that all the e-mails he sent to complainant

"were work-related, written in a professional manner, and within

my authority. My e-mails to [complainant] were neither harsh nor in

reprisal for her prior EEO activity."

CP stated that S1 "shared virtually all of his e-mails to [complainant]

with me. I found them to be direct, to the point, and professional.

I saw no indications of harshness or reprisal."

Regarding claim 4, S1 stated that he did not recommend complainant for

promotion from a GS-9 to a GS-11 because "she is not performing at the

higher grade level." Specifically, S1 stated that the next grade level,

GS-11, requires greater independence in planning, organizing, scheduled

and completing assignments. S1 also stated that GS-11 "requires increased

knowledge and experience, enhanced skill, and competency. [Complainant]

has not shown this ability in her work, but requires detailed guidance

from me on a regular basis." S1 stated that complainant "often struggles

with routine tasks. Her routine assignments often contain errors. As a

result, an enormous amount of time is spent by me monitoring and checking

her work. She submits work that is often poorly written, incorrect, and

lacks technical detail, because she either rushes through the process or

does not spend sufficient time proofreading her work." S1 stated that he

provided complainant with detailed feedback concerning her performance

and his expectations for improving her work but complainant "routinely

minimized the errors as not important, made excuses for them occurring,

and did not take responsibility for them."

Regarding claim 5, S1 stated that complainant received a "Fully

Successful" rating in FY 2007. S1 stated "although rating-based

performance bonuses (awards) must be based on ratings at the 'Fully

Successful level or above,' the WAOB only gives performance bonuses to

employees that receive ratings above the 'Fully Successful" level."

S1 further stated "while there is no written policy on this to my

knowledge, this is a long-standing practice at the WAOB."

Regarding claim 6, S1 stated that during the relevant time he spoke with

[CP] concerning complainant's request to telework. S1 further stated

"[CP] and I determined that complainant's presence in the Stoneville

office was essential. In order to perform her job effectively,

[complainant's] presence in the office is needed to facilitate daily

face-to-face contact with Delta Research and Extension Center (DREC)

colleagues, Agricultural Research Service (ARS) scientists, and the

general public we serve." S1 also stated that complainant's job "requires

her to be on site, taking weather observations and developing close

working relationships with scientists and other professionals engaged

in agricultural activities. This activity strengthens our presence in

the Delta and also helps her to grow professionally, gaining experience

and knowledge in agricultural weather. This is what we want."

CP stated that the Stoneville office is a single-person office and

"budget limitations preclude hiring another employee for the office.

As the only USDA/WAOB/JAWF employee onsite, [complainant's] presence

is essential to meeting the goals of the office. Face-to-face contact

with local scientists and the ability to provide representation to the

local community is an important aspect of this position."

With respect to complainant's request for reassignment, S1 stated that

he notified complainant in an email dated August 6, 2007 that "there

were no positions within OCE to reassign her to." S1 further stated

"an employee seeking reassignment could apply to job vacancies elsewhere,

if the employee chooses to do so."

On appeal, complainant argues that "most of issues have still not been

restored to me, and it appears management and HR want to pin me as the

problem, rather than take responsibility for their wrongdoing against

me which is still ongoing."

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.2

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

October 22, 2009

__________________

Date

1 The record reflects that claims 4 - 6 were later amended to the instant

formal complaint.

2 Because we affirm the agency's finding of no discrimination concerning

claims 1 - 2, we find it unnecessary to address the dismissal of these

claims on alternative procedural grounds (i.e. failure to state a claim

and untimely EEO Counselor contact).

??

??

??

??

2

0120092384

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120092384

8

0120092384