01971192
10-06-1999
Norma F. Brailsford, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Norma F. Brailsford v. Department of Commerce
01971192
October 6, 1999
Norma F. Brailsford, )
Appellant, )
) Appeal No. 01971192
v. ) Agency No. 96-54-0074
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
INTRODUCTION
On November 20, 1996, Norma F. Brailsford (the appellant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated October 9, 1996, concerning her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq., and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. �621 et seq. The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
appellant had failed to prove that the agency discriminated against her
based on race, sex, religion and age.
BACKGROUND
Appellant had been employed by the agency since 1991 as a Secretary,
GS-8, in the Office of External Affairs of the National Ocean Service,
a part of the National Oceanic and Atmospheric Administration. On May
5, 1995, she received her mid-term progress review, at which time she
was counseled about deficiencies in her work performance. On June 5,
1995, appellant's supervisor gave her a memorandum outlining what had
been discussed at the mid-term progress review and the specific steps
appellant needed to take to improve her performance. Appellant's annual
performance review resulted in a rating of "Does Not Meet Expectations,"
and she was put onto a Performance Improvement Plan (PIP), dated November
3, 1995, after her performance review.
Appellant initiated EEO Counseling on November 2, 1995. She filed a
formal complaint on December 19, 1995, alleging discrimination on the
bases of race (black), sex (female), religion (Pentecostal) and age
(DOB 3/14/42). She alleged that she had been subjected to discrimination
when:
1) on October 30, 1995, she received an annual performance rating of
"Does Not Meet Expectations;"
2) on November 3, 1995, she was placed on a PIP;
3) she had to work through her lunch times and stay after the completion
of her scheduled workday in order to meet the requirements of the PIP;
and
4) she was subjected to threats from her supervisor, such as "you only
have one more mistake until my memorandum goes into effect," or when the
supervisor reminded appellant that a lack of improvement could result
in the loss of her job or her being placed on leave without pay.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified appellant of her right to request an
administrative hearing. After appellant failed to request a hearing,
the agency issued its FAD on October 9, 1996.
In its FAD, the agency found that the appellant had failed to establish
a prima facie case of race, sex, religion or age discrimination because
she was unable to demonstrate that there were any similarly situated
employees, and because she had not shown that she had worked through lunch
or that her supervisor had threatened her. The FAD further stated that
appellant had failed to establish that the legitimate, nondiscriminatory
reasons articulated by the agency for its actions were a pretext for
discrimination. Appellant timely appeals, without comment.
ANALYSIS AND FINDINGS
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 appellant to prevail, she 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.
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. 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. 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 appellant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. 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 response to appellant's claims of discrimination, the agency presented
evidence that appellant's work performance was unsatisfactory. The record
reveals that appellant's errors on her work product were well documented,
over a period of several months, as were the instances when she was
counseled by her supervisor about improving the quality of her work. The
affidavits submitted by the staff to which she provided administrative
support also corroborate appellant's shortcomings in her work performance.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for its actions.
Since the agency articulated a legitimate, nondiscriminatory reason for
its actions, the burden returns to the appellant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that appellant has failed to do so. She did not argue that she had not
made the errors cited by her supervisor. Rather, she stated that she
had not encountered problems with her performance before, and that her
previous performance evaluations reflected satisfactory work. She also
argued that her supervisor "nitpicked." Appellant did not present any
evidence linking her performance evaluation and PIP with her race, sex,
religion or age. Therefore, the agency's determination that appellant
failed to establish that she was discriminated against was correct.<1>
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
Oct. 6, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 We find that the agency erred to the extent that it found that
appellant had not established a prima facie case of race, sex, religion
or age discrimination because she was unable to demonstrate that there
were any similarly situated employees. We note that to establish a prima
facie case, appellant must only present evidence which, if unrebutted,
would support an inference that the agency's actions resulted from
discrimination. Furnco, 438 U.S. at 576. It is not necessary for the
appellant to rely strictly on comparative evidence in order to establish
an inference of discriminatory motivation necessary to support a prima
facie case. O'Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307
(1996); Enforcement Guidance on O'Connor v. Consolidated Coin Caterers
Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996); Carson v.
Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).