0120121336
02-10-2012
Yvonne B. Chesson, Complainant, v. Gary Locke, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
Yvonne B. Chesson,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120121336
Agency No. 09-54-009101
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated January 6, 2011, finding no discrimination. For the following
reasons, we AFFIRM the Agency’s final decision.
BACKGROUND
In her complaint, dated October 28, 2009, Complainant, a Realty
Specialist, ZA-1170-III, with the Agency’s Real Property Office,
Real Property Management Division (RPMD), Office of Chief Administrative
Officer, alleged discrimination based on race (African-American), color
(black), sex (female), disability (fibromyalgia), and in reprisal for
prior EEO activity when:
(1) On August 13, 2009, her second level supervisor, Deputy Director,
RPMD, issued her a memorandum captioned, “Management Directed
Reassignment” stating that she had until August 16, 2010, to report
to Kansas City, Missouri, her new duty station, and that her refusal
to accept this directed reassignment would result in a proposal to
involuntary separate her from federal service. As a result, on October 1,
2009, she was forced to accept the reassignment to Kansas City, Missouri.
(2) She recently received a negative performance rating, a total score
of 50, which resulted in her receiving no performance pay increase and
no bonus.
After completion of the investigation of the complaint, Complainant did
not request a hearing. The Agency issued its final Agency decision
finding no discrimination. The Agency found that it had articulated
legitimate, nondiscriminatory reasons for its actions, which Complainant
failed to rebut.
ANALYSIS AND FINDINGS
Assuming arguendo that Complainant had established a prima facie case
of discrimination, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for the alleged incidents. With regard to
claim (1), Complainant’s second level supervisor stated that at
Complainant’s pay level, more direct interaction was needed with
a supervisor and that relocating to Kansas City would give her tools
she needed to be very successful as a Realty Specialist. Report of
Investigation (ROI), Exhibit (Ex.) 8. Complainant’s third level
supervisor further indicated that the alleged reassignment was part of
management’s transition plan to realign its personnel to achieve a
more efficient and effective organization. ROI, Ex. 9. Complainant was
one of two employees who was given a management directed reassignment
to achieve this plan. Complainant does not dispute this. These two
employees, including Complainant, were lower graded individuals who had
no local supervision in Norfolk, Virginia. Management believed that this
lack of local supervision prevented Complainant and the other employee
from Norfolk, from working at their optimal level. Id. Specifically,
Complainant was reassigned to Kansas City, Missouri, and the other
employee to Silver Spring, Maryland. The third level supervisor also
stated that a higher graded GS-14 employee was not given a management
directed reassignment because he worked independently and was allowed to
stay in Norfolk until his assignments were concluded. Id. The record
indicates that Complainant’s immediate supervisor was located in Kansas
City, Missouri.
With regard to claim (2), Complainant’s supervisors stated that
Complainant’s rating was considered fully satisfactory. The supervisors
indicated in the performance appraisal that: Complainant’s overall
level of output was less than full expectation; Complainant did not
independently keep management regularly updated as to the status of
her work; Complainant’s reports lacked/omitted detail; Line Office
representatives and customers complained about Complainant’s performance
on their leases; and, Complainant missed several one-on-one meetings
with the supervisor, conference calls, and weekly team meetings. ROI,
Ex. 14. Complainant’s second level supervisor further indicates
that the rating was based on Complainant’s performance in that she
got confused on projects and had difficulty answering basic questions
regarding her assignments. ROI, Ex. 8.
After a review of the record, we find that Complainant failed to
show that any similarly situated individuals outside of her protected
classes were treated more favorably. Complainant has not shown that
the Agency’s reasons for its actions were false or were in any way
motivated by discrimination.
CONCLUSION
The Agency’s final decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
2/10/12
__________________
Date
1 Complainant also appeals the Agency’s Final decision concerning her
complaint, Agency No. 08-54-00226, which is pending under EEOC Appeal
No. 0120111603.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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