01975949
03-07-2000
Sylvia Alcala, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Sylvia Alcala v. Department of the Treasury
01975949
March 7, 2000
Sylvia Alcala, )
Complainant, )
) Appeal No. 01975949
v. ) Agency No. 952368
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Sylvia Alcala (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of national origin (Hispanic), sex (female),
and age (date of birth: May 27, 1951), 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 (ADEA), as amended,
29 U.S.C. �621 et seq.<1> The appeal is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the agency's decision is AFFIRMED in part
and REVERSED in part.
ISSUES PRESENTED
The issues on appeal are whether complainant has proven by a preponderance
of the evidence that she was subjected to employment discrimination on
the above-cited bases when (1) she was denied the opportunity to retake
Unit II (Phase II) training in July 1995 and (2) she was notified in
August 1995 that she would be downgraded from a GS-7 Tax Technician
position to a GS-5 Group Secretary position.
BACKGROUND
The record reveals that complainant was hired as a probationary<2>
GS-7 Tax Technician trainee at the Internal Revenue Service's Dallas
District office on October 3, 1994, and was serving in that capacity when
the events noted above took place. She was subsequently downgraded to
a GS-5 Group Secretary. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint on
September 29, 1995. At the conclusion of the investigation, complainant
requested that the agency issue a final agency decision.
The FAD concluded that complainant failed to establish a prima facie
case of sex, national origin, or age discrimination in regard to Issue
No. 1 because complainant failed to show a relationship between her
protected classes and management's decision to provide her additional
on-the-job-instruction with a one-on-one coach rather than additional
classroom instruction.
The FAD went on to provide a legitimate non-discriminatory reason
for the agency's action. Specifically, the FAD concluded that while
complainant had been told that there was a possibility that she might be
able to retake her classroom training, such training was only one option.
Budget limitations caused a hiring freeze and, when complainant returned
from a period of leave, there was no training session that she could join.
In order to assist complainant in bringing her skills up to the fully
successful level, she was assigned a coach. The FAD concluded that
complainant did not establish that these reasons were pretextual or that
the true reason for the denial of classroom training was discriminatory
animus.
The FAD also found that complainant failed to establish a prima facie
case of sex, national origin, and age discrimination in regard to the
downgrade to a GS-5 position because she presented no evidence that
similarly situated individuals not in her protected classes were treated
differently under similar circumstances.
The FAD went on to conclude that management had articulated a legitimate
non-discriminatory reason for downgrading complainant. Complainant had
performance problems throughout her training period and did not at any
time obtain a fully successful performance rating. The FAD noted that
the agency's policy was to return trainees who were not successful to
their former positions, or a comparable position, unless these trainees
chose to resign or did not accept a return/downgrade to their former
positions, in which case they would be terminated. Upon being informed
of these options, complainant initially refused to resign or to accept
a downgrade, so she was issued a termination letter. Subsequently,
complainant decided to accept the downgrade and she was allowed to accept
the secretary position. The FAD found that despite complainant's contrary
arguments, she was not treated differently from certain co-workers she
named and that the agency treated her more than fairly in offering her
a downgraded position in lieu of termination.
CONTENTIONS ON APPEAL
On appeal, complainant concentrates on her age discrimination claim.
Citing various documents provided in the record, complainant argues that
numerous younger employees in her training class had similar problems
during training, but were allowed to continue as Tax Technicians.
In contrast, all seven of the employees forced to accept a downgrade,
resign, or be terminated, were females over the age of forty. Complainant
also points to testimony from various people who allegedly experienced
discrimination at the hands of complainant's immediate supervisor,
or who allegedly heard that supervisor make discriminatory statements.
Finally, complainant cites several positive comments made by trainers
regarding her performance, which she argues the agency overlooked in an
attempt to make her performance seem more negative.
The agency provides no response to these contentions.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII or ADEA case
is a three-step process. McDonnell Douglas Corp v. Green, 411 U.S. 792
(1973); Loeb v. Textron, Inc., 600 F. 2d 1003 (1st Cir. 1979).
Appellant has the initial burden of establishing a prima facie case
of discrimination. A prima facie case of discrimination based on
sex or national origin is established where appellant has produced
sufficient evidence to show that (1) she is a member of a protected
class; (2) she was subjected to an adverse employment action; and (3)
similarly situated employees outside her protected class were treated more
favorably in like circumstances. Complainant may also meet this burden
by presenting other evidence which raises an inference of discrimination.
Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
In a case alleging discrimination under the ADEA, complainant can
establish a prima facie case by showing that (1) she was at least forty
years of age at the time of the adverse action; (2) she was subjected to
an adverse employment action; and (3) she was accorded treatment different
from that given to a person(s) otherwise similarly situated who is not
a member of her protected group or is considerably younger than she.
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996);
Carver v. Department of Interior, EEOC Request No. 05930832 (May 12,
1994).<3>
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
If the agency articulates a reason for its actions, the burden of
production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason
is discrimination. Throughout, appellant retains the burden of proof
to establish discrimination by a preponderance of the evidence. It is
not sufficient "to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination." St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).
Moreover, in an ADEA case, the ultimate burden remains on complainant
to demonstrate, by a preponderance of the evidence, that age was a
determinative factor in the sense that "but for" her age, she would
not have been subjected to the action at issue. See Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); Fodale v. Department of Health and Human
Services, EEOC Request No. 05960344 (October 16, 1998).
In the case at hand, complainant failed to establish a prima facie case
of sex, national origin, or age discrimination in regard to the agency's
failure to allow her to retake Unit II (Phase II) of the Tax Technician
training in July 1995. Complainant is a member of three protected groups
in that she is a Hispanic female at least 40 years of age. She failed
to show, however, that any similarly situated employees were allowed
to retake the Unit II training, or join a class already in progress.
Moreover, she did not offer any other evidence to establish that the
agency's decision to provide her with additional on-the-job-training in
the form of one-on-one coaching instead of classroom training was based
on discriminatory animus.
Accordingly, the agency's finding of no discrimination in regard to
Issue No. 1 is AFFIRMED.
The FAD concluded that complainant had also not established a prima
facie case of sex, national origin, or age discrimination in regard to
her downgrade to the GS-5 position. A review of the record reveals,
however, that while complainant has not established a prima facie case
of national origin discrimination, she has established a prima facie
case of sex and age discrimination on this issue.
Complainant has not established a prima facie case of national origin
discrimination because she has not offered any evidence that raises
an inference of national origin discrimination. Indeed, the record
establishes that of the seven employees in complainant's training
group who were terminated, resigned or offered downgrades due to poor
performance, two were Caucasian, and three were African-American.
At the same time, at least two employees of Hispanic national origin
in complainant's 45-person training group had lower cumulative scores
than complainant, yet remained Tax Technicians after the completion
of training. Complainant has therefore not offered any evidence that
raises an inference of national origin discrimination.
The agency argued that complainant also did not establish a prima facie
case of sex or age discrimination. The FAD noted that complainant did
not show that any less than fully successful Tax Technician outside
of these protected classes was allowed to remain a Tax Technician and
that she therefore did not establish a prima facie case. The fatal
flaw with this argument, however, is that the agency did not provide
performance ratings for any of the members of complainant's training
group, except for complainant. This is true despite the fact that this
case was sent back for supplemental investigation by the Director of the
Office of Equal Employment Opportunity at the agency, with a request
that various documents be added, including performance ratings of the
45 Tax Technicians hired for the same training class as complainant.
Commission precedent holds that when a party fails to produce relevant
evidence within its control, the failure to produce such evidence raises
an inference that the evidence, if produced, would prove unfavorable
to that party. See 29 C.F.R. �1614.108(c)(3)(i); see also Holm
v. Department of Justice, EEOC Request No. 05940916 (December 14, 1995),
citing Medinav v. United States Postal Service, EEOC Request No. 05940468
(December 9, 1994). Here, the agency's reliance on documents it did not
provide, despite a request from its own EEO office, is sufficient reason
to find that complainant has raised an inference of discrimination.
Moreover, from the information that is provided in the record, it seems
that some of complainant's co-trainees who were male and/or under 40,
did very poorly in Phase I and Phase II of training, yet were kept on
as Tax Technicians. With no support for the proposition that no other
less than fully successful trainee was retained and with evidence that
males and younger employees were retained, despite doing very poorly
on Phase I and Phase II testing, we find that complainant has raised an
inference of sex and age discrimination.
Despite concluding that complainant did not establish a prima facie
case of sex or age discrimination, the FAD attempted to articulate a
legitimate non-discriminatory reason for its action. Specifically,
the Chief of Examination Branch 8/Group Manager Examination Division
(CEB8: female, white, age 38 at time of complaint) stated that in March
of 1995 she identified 27 Tax Technicians trainees from the October 1994
class who were having problems. She made a list of these trainees from
knowledge gained by speaking with managers and on-the-job-instructors and
by reviewing training reports. She continued to monitor the progress of
these trainees, taking names off the list and adding names as certain
people improved and others did not. In August of 1995, she was left
with a list of seven trainees who had persistent performance problems
based on classroom scores, on-the-job-performance reviews and discussions
with coaches and managers. Complainant was one of these seven trainees.
Complainant's immediate supervisor (S1: female, white, age 51 at time
of complaint) testified that complainant minimally passed her classroom
training and had problems with tax law and developing issues during her
on-the-job training, along with other difficulties. The FAD indicates
that S1 averred<4> that after complainant returned from an extended
leave period, there was only a short time left before a decision had to
be made on whether she would be retained beyond her probationary period.
She was therefore given a 30-day extension of her on-the-job training
to show fully successful performance. When her performance did not
improve, she was given the option of resigning, accepting a downgrade,
or being terminated.
The crux of the agency's articulation is that it was complainant's
on-the-job performance, in addition to her low test scores, which caused
her downgrade. This is important because if the agency were merely
relying on test scores, there were several trainees who did far worse
than complainant. Indeed, as complainant notes, she passed both phases
of classroom training with scores of 70% and 71%, whereas many trainees
failed both phases but were retained and assigned to groups. The agency's
reliance on complainant's poor on-the-job performance in justifying her
downgrade is therefore critical to its articulation. As noted above,
however, while the agency has provided sufficient documentation to
establish that complainant was having difficulty in some areas of job
performance, no documentation was provided to establish the on-the-job
performance of the other trainees, even those whose classroom scores
were far worse than complainant's.
The burden upon the agency to articulate a legitimate non-discriminatory
reason is not an onerous one. In the case at hand, however, the lack of
any independent evidence which demonstrates that complainant's on-the-job
performance was worse than other trainees, along with the evidence that
complainant scored better in the classroom than several trainees who
were retained, renders the agency's articulation suspect. Commission
precedent holds that the agency must set forth, with sufficient clarity,
reasons for complainant's downgrade such that she has a full and fair
opportunity to demonstrate that those reasons are pretext. See Parker
v. United States Postal Service, EEOC Request No. 05900110 (April 30,
1990); Lorenzo v. Department of Defense, EEOC Request No. 05950931
(November 6, 1997). Here, the fact that the agency ignored the EEO
Director's request that the record be supplemented with performance
ratings on all the trainees in complainant's class, contributes to the
weakness of the agency's articulation.
Even assuming that the agency met its burden of articulating a legitimate
non-discriminatory reason for its actions, we find that the evidence in
the record, along with the evidence missing from the record, establishes
that this articulation is pretextual. Again, complainant pointed to a
number of comparative employees who were less successful than she in the
cumulative scores in both Phase I and Phase II of classroom training, yet
were retained as Tax Technician. A review of the record indicates that
one trainee, a male Hispanic, born in 1961 and therefore 33 at the time of
the complaint (T1) received a cumulative score of 45% for Phase I and 48%
on Phase II. T2 was retained and assigned to a group. No performance
ratings or statements concerning performance were provided for T1 or
any of the other trainees except for complainant so we are unable to
determine what their on-the-job performance was. In one document in
the record that was clearly created for the purposes of this complaint,
the agency indicated T1 "improved significantly with final test" in
an apparent attempt to explain his retention. The record indicates
that T1's "significantly improved" final test score was 50%. The fact
that T1, a trainee from complainant's class, was retained despite these
scores demonstrates that complainant's downgrade was more likely than
not motivated by her age and sex.
CEB8 testified that she reviewed the performance of the trainees
and determined that only seven were having problems. Without the
training reports or testimony from the on-the-job instructors and
coaches to which she refers, however, we have no way of determining
whether complainant's on-the-job performance was more problematic than
others. Again, we note that the EEO Director asked that a supplemental
investigation be done and noted that the performance ratings of the other
employees needed to be included in the record. Despite this second
chance to establish a sufficient record, the agency failed to do so.
We reiterate that when a party fails to produce relevant evidence within
its control, the failure to produce such evidence raises an inference
that the evidence, if produced, would prove unfavorable to that party.
29 C.F.R. �1614.108(c)(3)(i); Holm.
It is especially appropriate to draw such an adverse inference in the
situation at hand, given that the agency was specifically asked to provide
information about the performance ratings of all the trainees that were
in complainant's October 1994 training class, yet failed to do so.
We therefore infer that, had the performance ratings/records for the
other trainees in complainant's class been provided, they would have
established that T1--a male and considerably younger than complainant
but otherwise similarly situated--was having performance problems as
significant as complainant's, yet was retained and that complainant
would therefore have been retained but for her age and sex.<5> The
inference of age discrimination is further supported by other evidence
in the record, which establishes that S1 had commented to a Tax Auditor
that while age discrimination was illegal, it did happen and at his age
(46 at the time of the complaint) the agency was going to hire kids
out of college. While this does not establish that S1 had a personal
age-bias, it does indicate that S1, who was an integral part of the
decision-making process regarding complainant, felt that the agency was
anxious to hire younger employees.
Based on the information in the record, along with the information that
is missing from the record despite a specific request for it, we find
that the agency has not provided a sufficient articulation to overcome
complainant's prima facie cases of age and sex discrimination. In the
alternative, we find that complainant has established that the agency's
articulation is pretextual. Therefore, we find that, more likely than
not, complainant was subjected to sex and age discrimination when she
was downgraded.
CONCLUSION
Accordingly, after a thorough review of the record, the agency's finding
of no national origin, sex, or age discrimination in the denial of
complainant's request to retake Unit II classroom training is AFFIRMED.
Moreover, the agency's finding of no national origin discrimination in
regard to complainant's downgrade is AFFIRMED. The agency's finding of no
age or sex discrimination in regard to complainant's downgrade, however,
is REVERSED in accordance with the ORDER below and applicable regulations.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency is directed to retroactively reinstate complainant to her
position as a GS-7 Tax Technician trainee in a group that does not have
S1 in its chain of command. If the next available training class for Tax
Technician's at the San Antonio office is within 90 calendar days of the
date this decision becomes final, the agency shall place complainant in
this class. If no Tax Technician training class begins within this time,
the agency shall ensure that complainant begins equivalent training at
the San Antonio office within 90 calendar days of the date this decision
becomes final. The Agency may place complainant at another office if
complainant agrees.
2. Within thirty days of the date this decision becomes final, the agency
shall remove all records of complainant's downgrade from all agency files,
including complainant's personnel file.
3. The agency shall determine the appropriate amount of back pay,
interest, and other benefits due complainant pursuant to 29 C.F.R. �
1614.501, no later than sixty calendar days after the date this decision
becomes final. If complainant declines to accept the reinstatement with
the agency, the back pay period shall end on the date she declines the
offer of reinstatement. Complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there is a
dispute regarding the exact amount of back pay and/or benefits, the agency
shall issue a check to complainant for the undisputed amount within sixty
calendar days of the date the agency determines the amount it believes to
be due. Complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement below entitled "Implementation of the Commission's Decision."
4. The agency is further directed to post a notice in compliance with
the paragraph below entitled "Posting Order."
5. The agency shall take corrective, curative, and preventative action
to ensure that age and sex discrimination do not recur, including,
but not limited to, providing training in the law against employment
discrimination to CEB8, S1, and all other officials involved in the
decision to offer complainant the option of resignation, termination, or
acceptance of a downgrade. Within thirty calendar days of the date the
training is completed, the agency shall submit to the Compliance Officer
appropriate documentation evidencing the completion of such training.
6. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant, through
counsel, shall submit a request for attorney's fees and costs in
accordance with the Attorney's Fees paragraph set forth below. No later
than sixty (60) days after the agency's receipt of the attorney's
fees statement and supporting affidavit, the agency shall issue a
final agency decision addressing the issues of attorney's fees, costs,
and compensatory damages. The agency shall submit a copy of the final
decision to the Compliance Officer at the address set forth below.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Dallas District Office copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
03/07/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
DATE
__________________________
Equal Employment Assistant
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ____________ which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. has occurred at the Department of the Treasury,
Internal Revenue Service, Dallas District Office, in Dallas, Texas
(hereinafter "facility").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have discriminated on the bases of sex and
age when a female employee was downgraded from a GS-7 trainee position
to a GS-5 position. The agency was therefore ordered to : (1) reinstate
this individual to a GS-7 trainee position; (2) provide this individual
with any back pay, interest and/or benefits to which she was entitled;
(3) provide training to the management officials responsible for
her downgrade; (4) award proven compensatory damages and reasonable
attorney's fees, if applicable.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted: _____________________ ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Although complainant contends that she was not a probationary employee,
having served in the federal government for 20 years, the FAD indicates
that she had resigned from her position with the Air Force and was hired
from an Office of Personnel Management certificate. The agency contends
that a new probationary period must be served any time an employee is
appointed from an OPM certificate. While the letter offering complainant
the GS-7 Tax Technician position did not state that it was probationary,
the Notification of Personnel Action, Standard Form 50, did indicate
that a one-year probationary period was required. Complainant does not
allege that this involved discrimination, but merely notes that she does
not think she was a probationary employee.
3 We note that this is only one method of establishing a prima facie case
of age discrimination, and that a complainant is not precluded from such
a showing merely because the comparative employee(s) is not considerably
younger. See Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996).
4 Portions of S1's affidavit are illegible and/or missing.
5 We note for the record that we have considered the fact that complainant
was apparently a probationary employee. It is apparent from the record,
however, that a trainee's probationary status was not considered in
determining whether to retain or downgrade that trainee in that several
probationary trainees who did quite poorly in both phases of classroom
training were retained. While CED8 testified that complainant was the
only probationary trainee, the evidence provided by the agency indicates
that T1, along with several other trainees in complainant's class,
were also probationary.