Vernita McNamee, Complainant,v.Daniel Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01990093 (E.E.O.C. Mar. 9, 2000)

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.