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