01990093
03-09-2000
Vernita McNamee, Complainant, v. Daniel Glickman, Secretary, Department of Agriculture, Agency.
Vernita McNamee v. Department of Agriculture
01990093
March 9, 2000
Vernita McNamee, )
Complainant, )
) Appeal No. 01990093
v. ) Agency No. 920803
)
Daniel Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (black) in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges
she was discriminated against when: (1) she was denied a promotion to a
GS-7 position in 1988; (2) she was assigned duties outside of her grade
level; (3) she received negative comments on her October 1991 performance
appraisal; and (4) she received a letter of reprimand in October 1991.<2>
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 Commission affirms the FAD.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
she was discriminated against on the above basis.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a County Program Technician (GS-6) at the agency's Somerville,
TN facility. Complainant alleged that she applied for a promotion in
February 1988; however, the agency did not promote her. At this time,
she stated that she was required to perform job duties outside of her
grade level. In September 1991, the complainant was promoted to County
Loan Technician (GS-7). Complainant alleged that, after she received
the promotion, she was required to perform lower grade duties that were
not in her job description.
On her October 1991 performance appraisal, the complainant alleged
that her supervisor wrote the following negative comments: not getting
along with other employees and failure to respect other employees.
Also in October 1991, the complainant received a letter of reprimand.
This October 28, 1991 letter of reprimand addressed the complainant's
inability or unwillingness to perform assigned duties according to her
supervisor's instructions. The complainant alleged that this reprimand
was issued for not getting along with co-workers and that similarly
situated co-workers were not reprimanded for similar acts.
Believing she was a victim of discrimination, complainant sought
EEO counseling and, subsequently, she filed a complaint on August 3,
1992. 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 race discrimination with regard to her promotion, job
duties, and letter of reprimand because she presented no evidence that
similarly situated individuals not in her protected classes were treated
differently under similar circumstances. However, the agency concluded
that complainant established a prima facie case of race discrimination
with regard to her performance appraisal.
The complainant did not provide additional reasons for appealing the FAD.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally 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 race 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 actions. Id. 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
action. 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.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
The Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Because the agency has
proffered legitimate, nondiscriminatory reasons, complainant now bears
the burden of establishing that the agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
We find that she has failed to meet this burden.
Promotion in 1988
In this case, the agency sought funding for three positions. Two of the
positions were in the GS-5 category, and one position was listed as GS-7.
Complainant and a White co-worker applied for the latter position.
The two GS-5 positions were filled. In fact, a Black co-worker was
promoted into one of these positions. For staffing reasons, the State
Review Board did not approve the agency's request for the GS-7 position.
Therefore, no employee, Black or White, was selected. However, the
agency determined that it needed a GS-9 position (Assistant County
Supervisor) to handle its growing needs. To accommodate this need,
an agency employee at that grade level and with that experience was
transferred to the Somerville, TN facility to fill this position.
The complainant argued that she did not get the promotion because an
employee of another race received it. The agency stated that the
other employee was transferred into that GS-9 position because of
her qualifications. Complainant, who was a GS-6 at that time, was not
qualified for the position. Therefore, she cannot show that the agency
was motivated by a discriminatory reason.
Job Duties
In September 1991, the complainant was promoted to a GS-7 position,
County Loan Technician. According to her job duties, she would "perform
primarily technical and administrative assistant work in support of the
agency loan and grant programs." Also, she would "perform a variety of
more routine and repetitive technical tasks." The State Review Board
requested that the office management duties of this position be deleted.
The position incorporated some of the administrative and technical duties
of her former position, but it did not include the supervisory or loan
servicing ones. The complainant believes she was required to do these
lower grade duties because of her race. The agency stated that she was
doing some of the same administrative and technical duties because her
previous position had been abolished. The complainant has not shown
that the agency's actions were motivated by any discriminatory reasons.
Performance Appraisal
The record does not reflect a performance appraisal in October 1991.
The agency's performance appraisals occur in one year increments.
The relevant performance appraisal in this case covered July 1, 1991
through June 30, 1992. This appraisal did not contain any statements
about the complainant not getting along with other employees or her
failure to respect other employees. The performance appraisal did mention
the complainant's refusal to do work until instructed by the supervisor.
However, the supervisor also acknowledged the complainant's good relations
with applicants and borrowers and her courteous and helpful nature.
As a result, the complainant was rated as "fully successful." We find
that the agency articulated legitimate, nondiscriminatory reasons for the
"fully successful" rating and evaluation comments and that complainant
failed to prove pretext or a discriminatory animus.
Letter of Reprimand
In October 1991, complainant received a hand delivered Letter of
Reprimand. The letter addressed the complainant's refusal to follow her
supervisor's orders regarding accepting loan applications. Her supervisor
wanted her to accept scheduled applications only on Tuesdays from 9:00
a.m. until 11:00 a.m. However, on Tuesday, October 1, 1991, complainant
refused to take scheduled applications pursuant to verbal and written
instructions from her supervisor. She rescheduled the applications for
another day so that she could complete a report. Also, she accepted an
unscheduled application ahead of other scheduled ones.
The supervisor notified the State Director of the problem. He received
authorization to issue complainant a Letter of Reprimand. The agency
took appropriate measures to address the complainant's insubordinate
actions. The complainant has not shown that the letter was a pretext
for discrimination against her.
CONCLUSION
The Commission finds that complainant failed to present sufficient
evidence that the agency's articulated reasons for its actions were a
pretext for discrimination. Therefore, after a careful review of the
record, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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 (S1199)
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:
03/09/00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
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 In her August 3, 1992 formal complaint, the complainant alleges
discrimination on the basis of race and reprisal. However, in her
March 15, 1993 affidavit, she acknowledges that she had never filed an
EEO complaint and that she wanted to allege discrimination based upon
race only.