01a51187
03-25-2005
Thomasina M. Tate, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Thomasina M. Tate v. Department of State
01A51187
March 25, 2005
.
Thomasina M. Tate,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A51187
Agency No. F-023-04
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.
During the relevant time, complainant was employed as a Passport
Specialist, GS-0967-07 at the agency's Chicago Passport Bureau, Bureau of
Consular Affairs in Chicago, Illinois. On January 13, 2004, complainant
initiated contact with an EEO Counselor, and subsequently filed a formal
complaint on February 5, 2004. Therein, complainant claimed that she
was discriminated against on the bases of race (African-American), sex
(female), color (black), and age (55) when:
(1) at the end of the established 2003 rating period, management denied
her promotion to the GS-09 level;
(2) management placed her on a forty-five day Performance Improvement
Plan (PIP) effective January 22, 2004; and
(3) she has been denied numerous promotions to a GS-09 since 1999.<1>
On March 4, 2004, the agency issued a partial dismissal. The agency
dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(2), on the
grounds of untimely EEO Counselor contact. The agency determined that
complainant had or should have had reasonable suspicion of the alleged
discriminatory events more than forty-five days prior to her initial
January 13, 2004 EEO Counselor contact. The agency accepted claims (1)
and (2) for investigation.
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.
In its FAD, the agency found no discrimination. The agency assumed
that complainant established a prima facie case of race, color, age
and sex discrimination. However, the agency found that it articulated
legitimate, non-discriminatory reasons for its employment actions.
Further, the agency found that complainant failed to present any evidence
which demonstrated that management's articulated reasons for its actions
were a pretext for discrimination.
Claims (1) and (2)
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, she 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 a legitimate,
non-discriminatory reason for its employment actions. Regarding claim
(1), we note that the record contains a declaration from complainant's
Supervisor. Therein, the Supervisor stated that in March 2003, she became
complainant's immediate supervisor; and that she conducted two Progress
Reviews covering the periods of January 1, 2003 through April 30, 2003,
and from May 1, 2003 through August 31, 2003. The Supervisor stated
that while she only had a six-week period to evaluate complainant's work
for the first Progress Review, she gave complainant an overall fully
successful rating. The Supervisor stated further that she noted that
complainant averaged 11.1 counter applications adjudicated per hour
and 20.4 desk applications adjudicated during the period of January 1,
2003 through April 30, 2003. The Supervisor stated that complainant's
performance plan called for 9 to 10 counter applications and 22 to 24
desk applications. The Supervisor stated that she noted complainant
needed to be more accurate in her selection of the appropriate letters
requesting information, and that she should increase her knowledge
because of errors in this area.
Regarding the second Progress Review, the Supervisor stated that she rated
complainant's performance as �unacceptable.� The Supervisor stated that
complainant's counter average for the period was 8.3, and that her desk
average of 17.8, which the Supervisor determined were both well below the
performance plan requirement for a GS-07. The Supervisor stated that
she again noted that there were problems with complainant's accuracy in
selecting the correct letters to obtain additional information and she
needed to improve her knowledge in this area. The Supervisor stated
�this should have been an indication to her that her performance did
not warrant a promotion.�
The record also contains a declaration from the former Adjudication
Supervisor. Therein, the former Adjudication Supervisor stated
that she was never complainant's immediate supervisor, but that she
reviewed complainant's work during a short period in early 2003, after
complainant's former supervisor requested to be relieved, but before
the appointment of complainant's current Supervisor's appointment in
March 2003. The Adjudication Supervisor stated that complainant was not
promoted to the GS-09 level because of performance deficiencies for which
she was being counseled, and noted that complainant was not improving.
The Adjudication Supervisor stated that the following factors are
used in determining the performance and promotability of Passport
Specialists: their average production rates in adjudicating cases;
their error rates with IRLs [Individual Response Letters]; and their
demonstration of knowledge about the regulations and requirements for
processing applications for passports. The Adjudication Supervisor stated
that complainant was not ready for a promotion because she �was not even
meeting the numerical adjudication goals, her error rate was quite a bit
beyond the acceptable rate for her grade level and she was demonstrating
through her errors that she did not have a full understanding of the
knowledge needed to perform acceptably.�
Regarding claim (2), complainant's Supervisor stated that she was the
deciding official who placed complainant on a forty-five-day Performance
Improvement Plan (PIP) effective January 22, 2004 based on her production
and error rates. The Supervisor further stated that at the end of the
forty-five-day PIP, complainant met her production quota, but had not
demonstrated a sufficiently improved knowledge through her selection
of IRL letters. The Supervisor stated that because there were �too
many errors,� complainant's PIP was extended. The Supervisor stated
that complainant's race, sex, color, and age were not factors in her
determination to place complainant on PIP; and that she has been working
with complainant �diligently to help her improve her overall knowledge.�
In her declaration, the Adjudication Supervisor stated that she concurred
with complainant's Supervisor's assessment that PIP �was the next step�
in dealing with complainant's inability to perform at the full performance
level at the GS-07 level.
The Commission determines that complainant has not established that
the agency's articulated reasons for its actions were a pretext for
discrimination.
Accordingly, the agency's decision finding no discrimination regarding
the matter raised in claims (1) and (2) is AFFIRMED.
Claim (3)
Regarding claim (3), complainant claimed that she was discriminated
against on the bases of race, sex, color and age when she has been denied
numerous promotions to a GS-09 since 1999. In a partial dismissal dated
March 4, 2004, the agency dismissed this claim pursuant to 29 C.F.R. �
1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
Based on the evidence of record, we find that complainant had, or should
have had reasonable suspicion of unlawful employment discrimination
in 1999, when the agency purportedly commenced denying her numerous
promotions to the GS-09 level. We find that the January 13, 2004 EEO
Counselor contact occurred beyond the forty-five (45) day time limit.
On appeal, complainant does not present adequate justification to warrant
an extension of the applicable time limit for contacting an EEO Counselor.
Therefore, we find that the agency properly dismissed claim (3) due to
untimely EEO Counselor contact.
Accordingly, the agency's dismissal of claim (3) is AFFIRMED.
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 (S0900)
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 (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
March 25, 2005
__________________
Date
1For purposes of clarity, the Commission has
numbered complainant's claims as claims (1) - (3).