01973576
09-07-1999
Carmen M. Kaplan, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services (National Institute of Health),) Agency.
Carmen M. Kaplan v. Department of Health and Human Services
01973576
September 7, 1999
Carmen M. Kaplan, )
Appellant, )
) Appeal No. 01973576
v. ) Agency No. NIH-120-94
) Hearing No. 120-95-6767X
Donna E. Shalala, )
Secretary, )
Department of Health )
and Human Services )
(National Institute of Health),)
Agency. )
______________________________ )
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. Appellant alleges
discrimination based upon her sex (female), national origin (Puerto
Rican), race (Hispanic), age (DOB: 12/2/48), and reprisal (prior EEO
activity) when: (1) a co-worker, rather than appellant, was promoted in
January, 1993; (2) her request for promotion in July, 1993 was denied;
(3) she received a Memorandum of Admonishment dated September 10, 1993;
(4) her office was moved from the fifth to the second floor on or about
September 30, 1993; and (4) she received a performance appraisal of
"Minimally Satisfactory" rather than "Excellent" on October 29, 1993.
The appeal is accepted in accordance with EEOC Order No. 960.001.
On November 22, 1993, appellant filed a Complaint alleging discrimination
as referenced above. Appellant's complaint was accepted for processing.
Following an investigation, appellant requested a hearing before an
EEOC Administrative Judge (AJ). An administrative hearing took place
on April 23, 1993 and May 17, 1993. On December 30, 1996, the AJ issued
her decision and recommended a finding of no discrimination with respect
to all issues. The agency subsequently adopted the AJ's recommended
decision. It is this agency decision which the appellant now appeals.
The AJ reviewed the entire record and assessed the witnesses' credibility
at the hearing and made the following findings of fact: At all times
relevant to this matter, appellant was employed as Chief of the Space
Acquisition Branch in the Division of Space and Facilities Management
(DSFM), Office of Research Services (ORS), National Institutes of Health.
Through March, 1993, the then-Deputy Director (white, male, DOB 1/17/46,
no prior EEO activity) (DD) supervised appellant's work. After March,
1993, the Director of DSFM (S1) became appellant's supervisor.
The record reveals that on July 13, 1992, S1 wrote a memorandum to DD
about errors that had been identified in a report submitted by appellant.
In that memorandum, S1 set a deadline of September 15, 1992 for the
submission of a corrected report. The new report was not submitted on
time and S1 sent appellant a memorandum accusing her, inter alia, of
"gross mismanagement."
On October 6, 1992, appellant received a performance evaluation rating of
"Fully Successful." DD had originally rated appellant as excellent,
however, S1 lowered the rating because of his dissatisfaction with
appellant's work on the report referenced above. On October 30, 1992,
appellant contacted an EEO counselor to file an informal complaint of
discrimination with respect to the performance evaluation. On November
24, 1992, S1 raised appellant's evaluation to the level originally
recommended by DD. The AJ determined that S1 knew of the 1992 EEO
complaint no later than mid-November, 1992 while at a management
retreat.
The AJ also determined that S1 stated to appellant that he had once
been engaged to a Puerto Rican woman and that he was glad he had not
married her because when he later saw her "she had gotten fat like her
mother."<1>
At the end of March, 1993, S1 replaced DD as appellant's supervisor.
However, DD provided appellant a progress review at that time which
indicated that appellant was working at the "Fully Successful" level but
that there continued to be a need for improvement in lease management,
management fund reports, use agreements, standard operating procedures,
and efficient utilization of staff. DD also testified that appellant's
performance was "just barely within fully satisfactory."
In late May, 1993, S1 also rated appellant "Fully Successful," but
noted a need for improvement in the areas of timeliness and accuracy
of policy advice, oversight and follow-up on completion of projects,
and the efficient and effective use of staff.
In July, 1993, upon learning that another supervisor (C1) (Black, male,
DOB: 9/1/49, no information regarding prior EEO activity) had been
promoted from GS-13 to GS-14, appellant approached S1 and requested a
promotion. S1 testified that he promoted C1 in part because he was an
engineer as well as an architect. In addition, S1 testified that C1 had
taken over much of the lease acquisition activity that had been intended
to be handled by the Space Acquisition Branch. Appellant testified that
she was handling the leasing responsibilities of her branch and had also
taken on certain duties of the Space Management Branch.
On July 31, 1993, S1 sent appellant a letter of concern because she had
missed, by one day, a June 22 deadline, for submission of a title search.
Appellant testified that the delay was attributable to the title insurance
company and ultimately did not delay the settlement on the property
in August. On August 31, 1993, appellant contacted an EEO counselor
regarding her non-promotion and S1's accusations of poor management.<2>
On September 10, 1993, S1 issued appellant a Memorandum of Admonishment
which advised her that she was currently working at a less than
satisfactory level. The memorandum listed eight projects that appellant
had failed to complete in a satisfactory manner. S1 also advised
appellant that he was implementing three organizational changes: (1)
suspension of the alternative work schedule for everyone in appellant's
branch; (2) suspension of appellant's outside activities; and (3)
relocation of appellant's branch's offices from the fifth floor to the
second floor. S1 indicated that he was moving appellant's branch to the
second floor in order to provide closer oversight. The record revealed
that the move to the second floor did not bring any increased supervision
or oversight. In addition, the evidence established that the working
conditions for appellant's branch were substantially reduced by moving
to the second floor.
Appellant argued in a response memorandum and at the hearing that: (1)
S1 failed to recognize that the resolution of many issues depended on
individuals or events outside her control; (2) S1 mis-characterized the
facts; and (3) many of S1's deadlines were unrealistic. S1 attributed
the problems to appellant's unresponsiveness to direction, simple failure
to follow through promptly on her responsibilities, and a pattern of
making excuses and blaming others for her own failings.
The record revealed that, in 1993, S1 issued letters of concern to
one white male, two Black females, two Black males, and one white
female.<3>
On September 14, 1993, S1 gave appellant a performance rating of
"Minimally Satisfactory" for the evaluation period of April 1 through
September 30, 1993. The reviewing official (RO) (white, male, over 40,
no information on prior EEO activity), Associate Director of the Office
of Research Services, approved the evaluation on October 15, 1993.
In addition, DD concurred with the "Minimally Satisfactory" rating.
While appellant alleged that S1 told her that he was aware of her EEO
contact in early September, 1993, the AJ determined, based on the
credibility of the testimony and the documentary evidence, that S1 knew
appellant filed an EEO complaint as early as October 4, 1993. However,
the preponderance of the evidence did not support the contention that
S1 knew of the EEO contact prior to that time.
Appellant was placed on a Performance Improvement Plan (PIP) on November
17, 1993. On November 24, 1993, appellant filed a grievance with respect
to the PIP. The grievance examiner found S1 to be an "efficiency-zealous
manager" and appellant to be very candid and outspoken. According to
the examiner, both parties contributed to the dispute. The examiner
decided to raise appellant's rating from "Minimally Satisfactory" to
"Fully Successful."
AJ's Recommended Decision
Non-Promotion
The AJ determined that appellant failed to establish a prima facie case of
discrimination with respect to the non-promotion issues. Specifically,
the AJ did not find appellant and C1 similarly situated because they
encumbered positions in different classification series. In addition,
the record indicated that others in C1's series and job title (architect)
were graded at the GS-14 level and that an independent personnel official
supported the upgrade. The AJ also noted that since C1 was less than one
year younger than appellant there was no inference of age discrimination.
In addition, the AJ noted that no one who held appellant's position
and job series was upgraded to a GS-14 during the relevant time period.
The AJ also determined that appellant failed to dispute S1's assertion
that appellant needed to obtain a warrant prior to becoming eligible for
an upgrade. The AJ found nothing in the circumstances of appellant's
request for a promotion, in July, 1993, to suggest that her race,
national origin, sex, age, or prior EEO activity were the bases for
not being promoted. While the record indicated that S1 was aware of
appellant's prior EEO activity in October, 1992, the AJ determined that
the chronology of events did not indicate that the EEO activity in 1992
was a triggering event for appellant's non-promotion in July, 1993.
Admonishment, Office Move, Performance Evaluation
The AJ found that appellant failed to establish a prima facie case
of discrimination with regard to the September 10, 1993 Memorandum of
Admonishment, the movement of her office and her subsequent performance
evaluation. Specifically, the AJ noted that appellant failed to
present any comparative evidence of similarly situated individuals,
outside appellant's protected classes who were treated more favorably
than appellant. With respect to the claim of reprisal, the AJ found that
the preponderance of the evidence supported the fact that S1 became aware
of appellant's August, 1993 EEO contact no later than October 4, 1993.
However, the record did not support a finding of knowledge prior to
that date. Accordingly, since the alleged adverse actions all took
place prior to October 4, 1993, the record did not establish a prima
facie case of reprisal. In addition to the above, the AJ noted that
appellant failed to present any evidence which indicated that S1 acted
with discriminatory motives.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that, in all material respects, the AJ accurately set forth the relevant
facts and properly analyzed the case using the appropriate regulations,
policies, and laws. Based upon the evidence of record, the Commission
discerns no basis to disturb the AJ's finding of no discrimination.
We find that appellant's assertion on appeal that the AJ erred in failing
to address a hostile work environment claim is without merit. Appellant
failed to raise a hostile work environment claim at the time the issues
were framed during the EEO process. In addition, appellant, represented
by counsel at the hearing, failed to object to the issues as articulated
by the AJ at the hearing. Appellant did not raise such a claim until
the end of the hearing. Accordingly, we find that the AJ was proper
in failing to address such a claim since it was never properly alleged
by appellant. We also find that, with the exception of this argument,
nothing proffered by appellant differs significantly from the arguments
raised before, and given full consideration by the AJ. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407.
All requests and arguments must bear proof of postmark and 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 filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
9/7/99
_______________ __________________________________
DATE Carlton M. Hadden, Acting Director
1However, without more, the AJ could not conclude that this comment
established an animus toward Puerto Ricans, women or toward appellant in
particular, on those bases.
2When she initially met with her counselor in October, 1993, appellant
raised additional matters.
3There is no information regarding the circumstances surrounding the
issuance of these letters or the EEO history, if any, of the recipients.