0120081296
05-21-2010
Shirley E. Jenkins,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120081296
Hearing No. 420-2007-00158X
Agency No. 06.134
DECISION
On January 15, 2008, complainant filed an appeal from the agency's
December 26, 2007 final order concerning her equal employment opportunity
(EEO) complaint alleging 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's
(AJ) issuance of a decision without a hearing was appropriate; and (2)
whether complainant established that she was subjected to disparate
treatment and harassment on the bases of race, national origin, sex,
color, and in reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Regular Part-Time Warehouse Worker at the agency's Maxwell Air
Force Base Military Clothing Sales Store (MCSS) in Montgomery, Alabama.
Report of Investigation (ROI), Exh. F-5. Complainant's first-level
supervisor (S1) was the Regular Full-Time Shift Manager (Hispanic, white,
female, Panama, no prior EEO activity). ROI, Exh. F-2, at 2. The Regular
Part-Time Shift Manager (Caucasian, female) supervised complainant in
S1's absence. ROI, Exh. F-5. Complainant's second-level Supervisor (S2)
was the Store Manager (Asian, brown, Philippines, no prior EEO activity).
ROI, Exh. F-3, at 2; Exh. F-8. Complainant was the only Warehouse Worker
assigned to MCSS. ROI, Exh. F-5. In addition to supervising complainant,
S1 supervised three Senior Store Associates (African-American female,
African-American female, Asian female).1 Id.; ROI, Exh. F-8.
According to her official job description, complainant's primary
responsibilities as a Warehouse Worker consisted of performing "a
variety of clerical and manual duties related to receiving and issuing
merchandise and supplies, to include record keeping, document preparation
and selecting storage/shelving locations in the facility or stockroom,
as appropriate."2 ROI, Exh. F-4.
On or around January 6, 2006, complainant alleged that her hours were cut
from 30 hours per week to 25 hours per week. Complainant's Affidavit
(Complainant's Aff.), at 4. In addition, she attested that on January
9, 2006 she was allowed to work only 21 hours one week and 22 hours the
next week. Id.
On May 8, 2006, complainant was counseled by S2 for incorrectly receiving
Battle Dress Uniforms on the computer. Id. at 5. On August 9, 2006,
complainant was counseled by S2 for not sending out boots for store
credit on the previous day. Id.
On July 28, 2006, complainant received her Personnel Evaluation
Report (PER) Non-Supervisory, for the rating period of August 1, 2005
through July 31, 2006, with a total PER score of 18. ROI, Exh. F-7.
Complainant's total PER scores for the rating periods from 2001-2002 to
2004-2005 were 20, 21, 21, and 22, respectively. ROI, Exh. F-8.
On September 14, 2006, complainant alleged that S2 told her that
"my job is a warehouse person and not a cashier. The only thing I
can do is unload trucks, receive merchandise. My place of duty is in
the stockroom." Id. at 3. Complainant attested that in the past,
until trucks came in with merchandise, she helped stock the sales
floor, assisted customers with special measurements for their uniforms,
and ran the cash register. Id. When the trucks came in, complainant
would receive the merchandise and transfer it out to different bases
and vendors. Id.
On September 26, 2006, complainant filed an EEO complaint alleging that
she was subjected to disparate treatment and harassment on the bases of
race (African-American), national origin (American), sex (female), color
(black) and reprisal for prior protected EEO activity3 under Title VII
when:
1. from January 3, 2006 to September 14, 2006, she was limited in
her assignment of duties;
2. on or about January 6, 2006, her hours were cut;
3. on May 8, 2006 and August 9, 2006, she was counseled; and
4. on July 28, 2006, she received her Personnel Evaluation Report (PER)
Non-Supervisory.
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 AJ. Complainant timely requested a
hearing. When complainant did not object, the AJ assigned to the case
granted the agency's September 14, 2007 motion for a decision without
a hearing and issued a decision without a hearing on December 19, 2007.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
In his decision, the AJ concluded that complainant failed to establish her
claim of harassment. Administrative Judge's December 19, 2007 Decision
(AJ Decision), at 21. Although the AJ found that complainant established
that she belongs to a protected group and that the conduct was unwelcome,
he found that there was no evidence that any of the complained about
actions were taken because of her race, national origin, sex, color,
or in reprisal for prior EEO activity. Id. at 16-18. In addition,
the AJ found that the isolated incidents between complainant and her
supervisors were insufficiently severe and pervasive enough to have
created a hostile work environment. Id. at 21. Further, the AJ found
that, even assuming, arguendo, that complainant had established a prima
facie case of harassment, the agency would avoid liability because it
exercised reasonable care to prevent and correct promptly any harassing
behavior and complainant unreasonably failed to take advantage of the
preventative or corrective opportunities provided by the agency or to
avoid harm otherwise. Id. at 21-22.
CONTENTIONS ON APPEAL
On appeal,4 complainant asserts that she continues to be harassed and that
the harassment is severe and pervasive enough to have created a hostile
work environment. Complainant's January 15, 2008 Statement on Appeal.
Complainant alleges that her supervisors have taken the following actions
against her: ethnic slurs, threats, unjustified negative evaluations,
unjustified negative references, harassment, adverse treatment, increased
surveillance, and other offensive conduct. Id. In addition, complainant
argues that S2 has failed at applying clear and equal objective criteria
for imposing discipline or making educational decisions. Id. Finally,
complainant notes that a former coworker resigned due to retribution
from management after she provided written testimony for complainant's
EEO case. Id.
In response, the agency argues that complainant's allegations on appeal
are unsupported by evidence, do not raise issues of material fact, and
do not specifically address the bases of her original complaint; and
requests that the Commission affirm the AJ's decision. Agency's February
13, 2008 Brief on Appeal, at 1-3, 8.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision the Commission must scrutinize
the AJ's legal and factual conclusions, and the agency's final order
adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a
"decision on an appeal from an agency's final action shall be based on a
de novo review . . ."); see also EEOC Management Directive 110, Chapter
9, � VI.B. (November 9, 1999) (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
Summary Judgment
The Commission must first determine whether it was appropriate for
the AJ to have issued a decision without a hearing on this record.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
We find that the AJ's issuance of a decision without a hearing was
appropriate. The record has been adequately developed, complainant
was given notice of the agency's motion to issue a decision without a
hearing, she was given an opportunity to respond to the motion, she was
given a comprehensive statement of undisputed facts, and she had the
opportunity to engage in discovery. We find that, even if we assume
all facts in favor of complainant, a reasonable fact finder could not
find in complainant's favor, as explained below. Therefore, no genuine
issues of material fact exist.
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143; St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC
Request No. 05950842 (November 13, 1997); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995).
As an initial matter, we find that claim 1, the August 9, 2006 portion of
claim 3, and claim 4 are discrete actions that state a claim by themselves
and should be analyzed separately under a disparate treatment framework.
For claim 2 and the May 8, 2006 portion of claim 3, we find that they
should not be analyzed separately due to untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must contact an EEO Counselor on that matter within 45 days of
the date of alleged to be discriminatory or in the case of personnel
action, within 45 days of the effective date of the action. The alleged
discriminatory acts occurred on January 6, 2006 and May 8, 2006, but
complainant did not contact an EEO Counselor until August 8, 2006,
which is beyond the 45-day regulatory limit.
Claim 1 - Limited in Her Assignment of Duties
Assuming, arguendo, that complainant has established a prima facie
case of discrimination on the alleged bases, we find that the agency
articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, S1 attested that complainant had previously helped out more
often on the sales floor when there was a Full-Time Warehouse Worker,
but that her assignments were focused more on the warehouse instead of
on the sales floor now that she was the only Warehouse Worker. ROI,
Exh. F-2, at 2. In addition, S1 attested that complainant could help on
the sales floor after her warehouse duties were completed. Id. at 3.
Further, S2 attested that complainant was never limited in terms of
her duties as a Warehouse Worker, but was given verbal instructions on
many occasions to prioritize her tasks and to focus on her main tasks,
which were in the warehouse. ROI, Exh. F-3, at 2.
Because the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reasons are a pretext
for discrimination. In an attempt to show pretext, complainant argues
that none of the other employees (Caucasian, Asian)5 were limited in
their duties and therefore have a better opportunity to advance within
the agency. Complainant's Aff., at 3. In addition, complainant asserts
that the limitations began after her second contact with the EEO Counselor
and because S1 and S2 disliked that she received more attention than they
did from male customers. Id.; Complainant's Rebuttal Statement, at 1.
In this case, we find that complainant has failed to provide evidence
that the agency's actions were based on discriminatory or retaliatory
intent. S1 attested that all the MCCS employees were allowed to work
in other areas of the store once their primary duties, as reflected
by their job descriptions, had been completed. ROI, Exh. F-2, at 3.
We note that complainant's responsibilities clearly differ from those of
the three other non-management employees to whom she compares herself,
as evidenced by her job title (Warehouse Worker versus Senior Store
Associate), job description, pay plan (Crafts/Trades versus Pay for
Performance), and grade (5 versus 1). ROI, Exh. F-8. As such, we find
that it was reasonable for management to ask complainant to focus on the
duties related to her official capacity as a Warehouse Worker instead
of responsibilities on the sales floor.
Claim 3 - Counseled on August 9, 2006
Assuming, arguendo, that complainant has established a prima facie case of
discrimination on the alleged bases we find that the agency articulated
a legitimate, nondiscriminatory reason for its action. Specifically,
S2 attested that complainant had been provided with a written instruction
the previous day to ship boots for store credit, but that S2 discovered,
after complainant had answered affirmatively when asked whether the
task had been completed, that the boots in fact had not been shipped.
ROI, Exh. F-3, at 6. In addition, S2 attested that she felt counseling
was warranted because complainant either chose not to follow orders or
failed to communicate with S2 that she (complainant) forgot. Id.
Because the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reasons are a pretext
for discrimination. In an attempt to show pretext, complainant argues
that she was singled out for counseling because the two Shift Managers
were not counseled when they made larger logistical blunders, but merely
were told to be more careful. Complainant's Aff., at 6.
In this case, we find that complainant has failed to provide evidence that
the agency's actions were based on discriminatory or retaliatory intent.
Complainant has provided no evidence to show that she was singled out
and both S1 and S2 attested that the Shift Managers were counseled
for mistakes. ROI, Exh. F-2, at 4; ROI, Exh. F-3, at 6-7.
Claim 4 - Received Her Personnel Evaluation Report (PER)
Assuming, arguendo, that complainant has established a prima facie
case of discrimination on the alleged bases we find that the agency
articulated a legitimate, nondiscriminatory reason for its action.
Specifically, S1 attested that complainant consistently called in sick
and that her performance was poor. ROI, Exh. F-2, at 5. In addition,
S1 attested that complainant did not take initiative in doing daily
tasks, but required constant reminders what her responsibilities were and
would get angry or defensive when reminded. Id. Further, S2 attested
that, while complainant performed well in some areas, she made errors
when receiving merchandise, failed to take initiative, and responded
unprofessionally when given direct orders as part of her daily work.
ROI, Exh. F-3, at 7.
Because the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reasons are a pretext
for discrimination. In an attempt to show pretext, complainant argues
that her PER score should not have dropped because she received several
positive comment cards from vendors and customers, who ask for by name due
to her outstanding work ethic and hospitality. Complainant's Aff., at 7.
In addition, complainant asserts that none of the other MCCS employees'
PER scores dropped and that her total PER score was the lowest that she
had ever received in her 15 years with the agency. Id.
In this case, we find that complainant has failed to provide evidence
that the agency's actions were based on discriminatory or retaliatory
intent. S1 and S2 attested that complainant did not receive any positive
comment cards; that the only customers that asked for her were personal
friends who come to visit; and that vendors dealt directly with S2.
ROI, Exh. F-2, at 5; ROI, Exh. F-3, at 7. In addition, we note that we
cannot compare directly the PER scores of complainant and the other MCCS
employees, as complainant was the only Warehouse Worker and the other
employees were Senior Store Associates or Shift Managers. A review of the
total PER scores for the five rating periods from 2001 to 2006, however,
show that complainant's score change was not drastically different from
the score changes of the Senior Store Associates.6 ROI, Exh. F-8.
Harassment
Complainant alleges that she was subjected to harassment by management
as stated in claims 1 through 4. In addition, complainant asserts that
S2 is harassing her "because she is trying to make me quit so that she
can hire one of her Asian friends." Complainant's Aff., at 8.
To establish a claim of harassment, complainant must show that: (1) she
is a member of the statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). Further, the incidents must have been "sufficiently severe
and pervasive to alter the conditions of complainant's employment and
create an abusive working environment." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,
Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor,
complainant must also show that there is a basis for imputing liability
to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).
We find that the evidence in the record is insufficient to support a
finding that S1 or S2's actions toward complainant were based on her
race, national origin, sex, color, or in reprisal for prior EEO activity.
As articulated above in our disparate treatment analysis, we find that
complainant has failed to show that claim 1, the August 9, 2009 portion
of claim 3, or claim 4 were motivated by discriminatory or retaliatory
animus. In addition, regarding claims 2 and the May 8, 2006 portion
of claim 3, we find that, aside from her bare assertions, there is no
evidence that complainant's hours were cut or that she was counseled
because of her membership in a protected class. Similarly, complainant
has not provided specific evidence to support her assertions on appeal.
Further, we find that management's actions did not alter the conditions
of complainant's employment or create an abusive working environment.
As such, we find that complainant has not established her claim of
harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the agency's final order, finding that complainant failed to establish
discrimination on the bases of race, national origin, sex, color, or in
reprisal for prior EEO activity.
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
May 21, 2010
Date
1 The agency does not track the color or national origin of its employees.
ROI, Exh. F-15; F-18.
2 Complainant's responsibilities also include, in relevant part, the
following:
a. Insures the proper receipt, verification and documentation of
merchandise/supplies. As required, posts sell prices on documents.
Records discrepancies or damaged shipments, initiates appropriate
corrective action and completes necessary documentation.
b. Signs receiving reports and other accountable documents and
processes receipt through appropriate systems...
c. Processes damaged/defective merchandise returned for repair or
replacement. Maintains records and takes follow-up action, as necessary.
d. Completes various merchandising documents and reports...
e. Assists in taking stock counts and official inventories.
ROI, Exh. F-4.
3 Complainant's prior EEO activity consisted of contacting an EEO
Counselor on two previous occasions. There is no record within the agency
that complainant had filed an EEO complaint prior to the instant matter.
Complainant's Aff., at 2; ROI, Exh. 16.
4 The Commission notes that complainant's February 25, 2008 and
February 28, 2008 statements in support of her appeal were filed in
an untimely manner. EEOC Regulation 29
C.F.R. � 1614.403(d) provides that any statement or brief on behalf of a
complainant in support of the appeal must be submitted to the Office of
Federal Operations and to the agency within 30 days of filing the appeal.
In this case, the record reflects that complainant filed her appeal and
a statement in support on January 15, 2008. Any additional statements
in support were due no later than February 14, 2008.
5 In specifically mentioning Caucasian and Asian employees, complainant
appears to be referring to S1, the Part-Time Shift Manager, and the
one Senior Sales Associate. The other two Senior Sales Associates are
African American.
6 Complainant's PER scores for the five rating periods from 2001 to 2006
were as follows: 20, 21, 21, 22, 18. ROI, Exh. F-7. The three Senior
Store Associates' PER scores for the same periods were as follows:
Associate 1 - 13, 12, 14, 14, 13; Associate 2 - 12, 14, 14, 15, 14;
and Associate 3 - 13, 14, 14, 16, unknown. ROI, Exh. F-8.
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0120081296
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081296