Patricia A. Booker, Complainant,v.Nicola O. Goren, Acting Chair, Corporation for National and Community Service, Agency.

Equal Employment Opportunity CommissionJun 7, 2010
0120091420 (E.E.O.C. Jun. 7, 2010)

0120091420

06-07-2010

Patricia A. Booker, Complainant, v. Nicola O. Goren, Acting Chair, Corporation for National and Community Service, Agency.


Patricia A. Booker,

Complainant,

v.

Nicola O. Goren,

Acting Chair,

Corporation for National and Community Service,

Agency.

Appeal No. 0120091420

Agency No. 04-08-004

DECISION

Complainant appeals to the Commission from the agency's decision dated

January 15, 2009, finding no discrimination. In her complaint, dated

February 28, 2008, complainant, a former employee within the agency,

alleged discrimination based on race (African-American) and age (over 40)

when:

(1) She received a rating of "minimally successfully" on her FY 2007

Employee Performance Appraisal/Evaluation from her first line supervisor

(S1);

(2) She was placed on 90-day Performance Improvement Plan (PIP) on

January 2, 2008, by S1;

(3) She was denied participation in "vital" staff workgroups, overlooked

for important assignments, and given "arbitrary and ambiguous" job

assignments with unreasonable completion deadlines; and,

(4) She was denied or not included in staff training and developmental

activities by her supervisors.

After completion of the investigation of the complaint, complainant did

not request a hearing. Thus, the agency issued its decision concluding

that it asserted legitimate, nondiscriminatory reasons for its actions,

which complainant failed to rebut.

After a review of the record, the Commission, assuming arguendo that

complainant had established a prima facie case of discrimination, finds

that the agency has articulated legitimate, nondiscriminatory reasons for

the alleged incidents. At the time of the alleged incidents, complainant

was a Program Development Specialist, GS-14, for AmeriCorps Volunteers

in Service to America (VISTA), in Washington, DC. With regard to claim

(1), S1 stated that complainant failed to produce her work products

in a timely manner. Complainant's second level supervisor (S2) also

indicated that complainant under-performed as a GS-14 and had a history

of non-performance. Specifically, S2 stated that complainant previously

signed her Individual Work Plan (IWP) in 2006, and she was informed and

agreed to perform the assigned projects, at issue. Complainant does not

dispute this. Despite complainant's claim that she was not informed of

the specific time deadlines for the projects, S2 indicated that at the

time of assignment, the Chief Operating Officer (COO) informed complainant

that project #1 was a top priority. S2 also indicated that project #1

had to be later reassigned to another individual due to complainant's

failure to complete the project in a timely manner and she also did not

complete project #2.

With regard to claim (2), S1 stated that complainant was placed in PIP to

help her improve her performance from a level of "minimally successful"

to a level of "fully successful." The record indicates that complainant

retired prior to the end of PIP.

With regard to claim (3), management denied the alleged incidents.

Specifically, S1 stated that work assignments were distributed equally

among all employees and work plans and deadlines were mutually agreed

upon or discussed at the beginning of the work assignments.

With regard to claim (4), management, denying the alleged incidents,

stated that staff training and developmental decisions were based solely

on the needs of the unit and that all members of the unit participated

in the COO's Conference, the VISTA staff retreat and in all pre-service

orientations for their respective clusters. Complainant acknowledged her

participation of the foregoing training. Complainant failed to show any

similarly situated employee who was treated more favorably with regard

to the alleged actions.

Upon review, we find that complainant failed to show that she was

treated less favorably than a similarly situated employee under similar

circumstances or that any agency actions were motivated by discrimination.

Accordingly, the agency's decision finding no discrimination is AFFIRMED.

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

6/7/10

__________________

Date

2

0120091420

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013