01a41466
07-22-2005
Ollie M. Darby, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Ollie M. Darby v. Department of Energy
01A41466
July 22, 2005
.
Ollie M. Darby,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A41466
Agency No. 01(73)OH
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a Special Assistant, GS-510-14, at the agency's Ohio Field Office,
Office of Chief Financial Officer in Miamisburg, Ohio.
On May 23, 2001, complainant filed a formal complaint. Therein,
complainant claimed that she was the victim of unlawful employment
discrimination on the bases of race (African-American), color (black),
age (55), and in reprisal for prior EEO activity.
In a final decision dated July 18, 2001, the agency determined that
complainant's complaint was comprised of the following nine claims.
1. The agency made an offer to settle complainant's discrimination
cases provided that complainant retire from federal service.<1>
2. A black employee was not provided the opportunity to become Acting
Manager in the absence of the Manager;
3. The agency knew that complainant was being charged with inappropriate
annual leave for attending the BIG [Blacks in Government] conference;
4. The agency made discriminatory settlement offers and excluded
complainant from receiving awards, training, etc;
5. The agency could have resolved one of complainant's EEO cases;
6. The agency engaged in discriminatory and retaliatory actions;
7. Complainant was denied managerial opportunities;
8. Another employee was pre-selected for a Budget Director position;
9. Complainant was denied a performance appraisal for fiscal year 2000,
until February 2001.
On July 18, 2001, the agency issued a final decision. The agency
dismissed claims (1) - (7) for failure to state a claim; claim (8) on the
grounds that it raised the same claim that was raised in a prior complaint
(Agency Case No. 98(007)OH)); and claim (9) on the grounds of mootness.
On appeal, complainant argued that the agency improperly framed
the claims. The Commission agreed, and determined that the agency
improperly framed several of complainant's claims. The Commission
therefore determined that the instant complaint was comprised of six
claims, that the Commission identified in the following fashion:
a. complainant was denied the opportunity to serve in the GS-15 Acting
Budget Director position;
b. she was not selected for a GS-15 Budget Director position;
c. agency management failed to provide her with a timely annual
performance appraisal for FY 2000;
d. she was denied cash awards;
e. she was denied job duties of her choice; and
f. she was ordered to perform duties outside her job description.
With respect to claim (c), the Commission concluded that the agency
properly dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim, and affirmed the dismissal of this claim.
Regarding claims (a), (d), (e) and (f), the Commission concluded that
the agency did not address these claims in its July 18, 2001 decision.
The Commission determined that because no reason had been provided by
the agency for dismissal of claims (a), (d), (e) and (f), the Commission
reversed the dismissal of those claims.
The Commission specifically addressed claim (d), and noted that to the
extent that claim (d) is part of the claim identified as �Claim (4)�
in the agency's July 18, 2001 final decision, complainant's complaint
details how she was allegedly denied cash awards for the fiscal years
1997 through 2001. The Commission determined that claim (d) is �not so
broad as to warrant dismissal for failure to state a claim.
Regarding claim (b), the Commission concluded that the agency improperly
dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1), for raising
the same claim raised in a prior complaint (Agency No. 98(007)OH).
The Commission found that the claim raised in Agency Case No. 98(007)OH
alleged that �between July 8, 1997 and July 23, 1997, complainant was
not selected to act in any of several positions.� The Commission
determined that the matter identified in claim (b) was not identical to
the matter raised in Agency Case No. 98(007)OH.
The Commission remanded claims (a), (b), (d), (e), and (f), as framed by
the Commission, to the agency for further processing. Darby v. Department
of Energy, EEOC Appeal No. 01A14954 (October 8, 2002).
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
The agency issued the instant FAD on December 4, 2003. The agency
dismissed claims (a), (b), (e), and (f) on the grounds that the matters
raised therein stated the same claim that had been raised in previously
filed EEO complaints.
The agency bifurcated claim (d). The agency dismissed the portion
of claim (d) regarding denial of awards between 1996 and 1999, on the
grounds that this matter was raised in previously filed EEO complaints.
However, the agency determined that complainant raises �for the first
time� the issue that she was denied awards in fiscal years 2000 and 2001.
The agency analyzed this portion of claim (d) on the merits, finding no
discrimination. Specifically, the agency determined that complainant
failed to establish a prima facie case of race, color, age or reprisal
discrimination. The agency further determined that even if a prima
facie case of discrimination were established regarding the denial of
cash awards between 2000 and 2001, management articulated legitimate,
nondiscriminatory reasons for not giving a cash award to complainant
between 2000 and 2001. Specifically, the agency concluded that a
review of the record reveals that complainant did not receive cash
awards between 2000 and 2001 based on her work performance. Moreover,
the agency found that complainant failed to present any evidence which
demonstrated that the agency's articulated reasons for its actions were
a pretext for discrimination and/or retaliation.
Portion of claim (d) regarding denial of cash awards in fiscal years
2000 and 2001
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).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its employment actions, which we determine
were not persuasively rebutted by complainant. The record in this
case contains an affidavit dated January 29, 2003, from the Chief
Financial Officer. Therein, the Chief Financial Officer stated that
complainant "did not receive case awards in FY 2000 and FY 2001 because
her performance did not merit an award." The Chief Financial Officer
further stated that "the criteria for awards are performance above that
level which is expected given the employee's grade level."
Upon review, the Commission determines that complainant has not
demonstrated that the agency's articulated reasons for not giving her
any cash awards between 2000 and 2001 were a pretext for discrimination.
Therefore, the agency's finding of no discrimination regarding the
portion of claim (d) regarding denial of awards in fiscal years 2000
and 2001 was proper and is AFFIRMED.
Claims (a) and (e)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides in part that the
agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The record reflects that complainant previously filed a formal EEO
complaint on October 7, 1997, identified as Agency No. 98(007)OH.
This prior complaint addressed complainant's non-selection to work in
any of several positions (Chief Financial Officer and Budget Director
positions) between July 8, 1997 and July 23, 1997,. The Commission
determines that claims (a) and (e) were properly dismissed for stating
the same claim that is pending before or has been previously decided by
the agency or Commission.
Claim (b)
The agency dismissed claim (b) for stating the same claim that had been
raised in a previously filed complaint (Agency No. 98(007)OH). However,
the Commission notes that on June 10, 2002, complainant filed a civil
action (identified as Civil Action No. 02-1143(RMU)) in the United States
District Court for the District of Columbia. We find that complainant's
civil action addresses the same non-selection claim as raised in claim (b)
of the instant complaint. Accordingly, complainant's appeal in regard
to the agency's dismissal of claim (b) is DISMISSED. See 29 C.F.R.
� 1614.409.
Portion of claim (d) (denial of cash awards between 1996 and 1999)
Regarding claim (d), the Commission notes that in its final decision,
the agency determined that complainant's claim that she was denied
awards between 1996 and 1999 were raised in two previous complaints
(portion of claim (d) concerning denial of cash awards between 1996
and 1999). The Commission determined that the agency did not include
in the record copies of other complaints or other adequate documentation
indicating that this portion of claim (d) addresses the same claims that
are pending before or have been decided by the agency or the Commission.
Therefore, we find that the agency improperly dismissed the portion of
claim d regarding denial of awards between 1996 and 1999, on the grounds
that they state the same claims previously decided by the agency.
Claim (f)
Regarding claim (f), we note in its final decision, the agency determined
that complainant's claim that she was ordered to perform duties outside
her job description was raised in her previous complaint (Agency No. 98
(081)OH)). The Commission determined that the agency did not include in
the record copies of other complaints or other adequate documentation
indicating that claim (f) was the same claims that are pending before
or have been decided by the agency or the Commission. Clearly, it is
the duty of the agency to have the evidence or proof to support its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1999). Therefore, we find that the agency
improperly dismissed claim (f) on the grounds that it states the same
claim previously decided by the agency.
Accordingly, the agency's decision to dismiss claims (a), (b) and (e)
is AFFIRMED. The agency's decision finding no discrimination regarding
the portion of claim (d) regarding denial of awards for fiscal years
2000 and 2001 was proper and is AFFIRMED.
However, the agency's decision to dismiss the portion of claim (d)
regarding denial of awards between 1996 and 2001 and claim ( f) is
REVERSED. The portion of claim (d) regarding denial of awards between
1996 and 1999, and claim (f) are REMANDED to the agency for further
processing in accordance with the ORDER below
ORDER (E0900)
The agency is ordered to process the remanded claims (the portion of claim
(d) regarding denial of cash awards between 1996 and 1999) and claim (f))
in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
July 22, 2005
__________________
Date
1The record reveals that in February 2001,
complainant retired from agency employment.