01983236
07-13-2001
Betty J. Williams, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Betty J. Williams v. Department of Defense
01983236
July 13, 2001
.
Betty J. Williams,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal No. 01983236
Agency No. CA 97-004
Hearing No. 220-97-5107X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she was
discriminated against on the basis of reprisal (prior Title VII activity)
when she received a performance appraisal of �fully successful� for the
period from September 24, 1995 through July 31, 1996. For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Supervisory Financial Systems
Analyst at the agency's Defense Supply Center, in Columbus, Ohio,
filed a formal EEO complaint with the agency on November 7, 1996,
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
reprisal discrimination because approximately two months after complainant
filed an earlier EEO complaint involving her supervisor (RMO 1: prior
EEO activity unknown), he gave her an appraisal of �fully satisfactory.�
Such an appraisal was two levels lower than the �exceptional� rating she
had been receiving for the past four years from her previous supervisors.
The AJ found that RMO 1 was aware of complainant's prior EEO activity,
and that given the relatively short period of time between such activity
and the date of complainant's evaluation, a retaliatory motive could
be inferred.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. RMO 1 stated that the reasons
he did not rate complainant higher than �fully successful� were because of
her handling of a tax withholding problem affecting several transferring
employees, failure to timely submit an adequate transition management
plan, lack of supervisory management skills, and because she was overdue
by three or four months in rating the employees she supervised.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that complainant
failed to rebut the agency's articulated reasons for her lowered rating.
The agency's final order implemented the AJ's decision. On appeal,
complainant essentially restates arguments previously made prior to and
at the hearing. In response, the agency restates the position it took
in its final agency order, and requests that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). See Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979) (applying McDonnell Douglas to age cases). First, complainant
must 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. McDonnell Douglas, 411 U.S. at 802. Next,
the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the agency is successful, then the complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of reprisal discrimination by
showing that: (1) she engaged in a protected activity; (2) the agency was
aware of the protected activity; (3) subsequently, she was subjected to
adverse treatment<1> by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The Commission agrees with the AJ's finding that the complainant
has established a prima facie case of reprisal, given that RMO 1 gave
complainant an evaluation of �fully successful� two months after she had
initiated an EEO complaint against him. The Commission further concurs
with the AJ's finding that the agency articulated several legitimate
reasons for its action. These reasons included complainant's handling
of a tax withholding problem affecting several transferring employees,
her failure to timely submit an adequate transition management plan,
her lack of supervisory management skills, and her delay by three or
four months in rating the employees she supervised.
Because the agency has articulated legitimate, nondiscriminatory
reasons for its action, the burden shifts to the complainant to prove,
by a preponderance of the evidence, that such legitimate reasons were a
pretext for discrimination. See Burdine, 450 U.S. at 256. Following a
careful review of the evidence, the Commission agrees with the AJ's
finding that the complainant has failed to meet this burden.
Complainant argues that she always received �exceptional� evaluations
until she filed an EEO complaint against RMO 1. The agency pointed
out that evaluations are based solely on an employee's performance over
the previous year, and that complainant's performance in earlier years
has no bearing on her evaluation for the current year. Furthermore,
the agency contended, the previous evaluations were provided by
different supervisors who might have been less demanding than RMO 1.
Complainant further argues that the tax withholding problem affecting
recently transferred employees had, by its very nature, to be handled
on a case-by-case basis. However, while complainant explained her steps
to rectify the problem for those employees known
to be affected, she did not rebut RMO 1's contention that she failed to
act proactively to seek to find ways to prevent the problem from affecting
future transferring employees. Complainant denies that she did not submit
a timely transition plan. On appeal, complainant contends that she was
unable to submit a satisfactory plan prior to May 1996 because RMO 1 �did
not know what he wanted until . . . May.� She further characterized an
earlier plan as �my first attempt.� We note, however, that she has not
denied that the due date for the plan was March 1996.
Regarding complainant's management skills, complainant argues that
she has extensive management and supervisory experience and that she
has participated in numerous office consolidations in the past. RMO 1
indicated that an example of complainant's lack of supervisory skills
could be seen in the fact that she rated eight of her nine subordinates
as �exceptional� while in other Divisions supervisors only gave two
or three such ratings to their subordinates. On appeal, complainant
pointed out that, in defending his own rating of complainant, RMO 1
himself had argued that different supervisors have different standards.
Regarding complainant's evaluations of her subordinates being three to
four months overdue, complainant states on appeal that the agency has
not proved this to be true.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that
complainant failed to meet her burden of showing, by a preponderance
of the evidence, that any of the agency's actions were in retaliation
for complainant's prior EEO activity. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
July 13, 2001
__________________
Date
1The Commission interprets the statutory retaliation clauses "to prohibit
any adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity." EEOC Compliance Manual, Section 8 (Retaliation)
at 8-13 - 8-14 (May 20, 1998).