01975909
10-27-1999
Caroline S. Lee, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs) Agency.
Caroline S. Lee, )
Appellant, )
) Appeal No. 01975909
v. ) Agency No. 960860
) Hearing No. 110-97-8022X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs)
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of race (Black), and reprisal (prior
EEO activity), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges she was
discriminated against based on race when: (1) she was not selected for the
GS-7 position of Patient Services Assistant (Position) and (2) subjected
to a hostile working environment; and, based on race and reprisal,
when (3) she was given a �fully satisfactory� rating in her Performance
Appraisal (PA) for the April 1, 1994, to March 31, 1995, rating period.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the reasons that follow, the FAD is AFFIRMED as CLARIFIED.
The record reveals that during the relevant time, appellant was employed
as a GS-6 Program Associate with the agency's Medical Administrative
Service at the Medical Center in Atlanta, Georgia. After EEO counseling,
appellant filed a formal complaint on December 28, 1995. At the
conclusion of the investigation, appellant requested a hearing before
an EEOC Administrative Judge (AJ). Following a hearing, the AJ issued
a Recommended Decision (RD) finding no discrimination and no reprisal.
The record shows that appellant worked additional hours starting up a new
Primary Care Clinic (PCC) while she was still assigned to the Ambulatory
Care Clinic (ACC) during the rating period at issue. Subsequently, in
March 1995, she was laterally transferred as a GS-6 Program Associate to
the PCC. It is undisputed that appellant worked very hard under difficult
conditions in the PCC before and after her transfer. Recognizing the
need for additional staff at the PCC, three GS-7 Patient Services
positions were advertised. Appellant applied, but was not selected.
These positions were filled with two Black candidates and one White
candidate. Contending that she was far better qualified than the White
selectee (SE), appellant contacted an EEO counselor, who interviewed
the selecting official, who was also appellant's current supervisor(S).
Shortly thereafter, S gave appellant her PA,<1> which she contested.
Despite efforts on the part of her previous supervisor in the ACC, and
the physician who worked with her in starting up the PCC, to convince
S to increase the rating, he declined to do so.
Addressing allegation 1, the AJ concluded that appellant established
a prima facie case of race discrimination because she was qualified
for the Position, but not selected in favor of an applicant not of her
protected class. The AJ then held that the agency had articulated a
legitimate nondiscriminatory reason for its decision to promote SE instead
of appellant, namely that an objective selection process was used and the
three best qualified candidates were selected. The AJ found that appellant
failed to show that this reason was a pretext for discrimination because
she did not suggest any reason why she thought race was a factor in the
selection process. Furthermore, the AJ also found a lack of racial animus
in that two Black applicants were hired for the other two positions, and
that S testified that he particularly did not want appellant working in
the Position. Thus, the AJ concluded that although appellant was arguably
better qualified than SE, and her non-selection might have been unfair,
it was not motivated by racial discrimination. See Lloyd v. Department of
Justice, EEOC Appeal No. 01952370 (May 6, 1997) and Jenkins v. Department
of Interior, EEOC Request no. 05940284 (March 3, 1995).
Addressing allegation 2, the AJ determined that appellant failed to
establish a prima facie case of a hostile work environment based on
race because she could not show that similarly situated employees not
in her protected class were treated more favorably. In so finding,
the AJ noted that appellant was the only clerical employee involved in
the start up of the PCC, so that there was no possibility for disparate
treatment in these somewhat unique situation. Moreover, the AJ found
that the working conditions, albeit �abominable,� were largely, if not
exclusively, the result of problems normally associated with starting
a new clinic, and that appellant made a personal choice to take on many
more responsibilities than actually required. Furthermore, the AJ found
that appellant's inability to suggest why she thought these working
conditions were the result of racial animus further belied establishing
an inference of discrimination.
Addressing allegation 3, the AJ held that although appellant failed to
establish a prima facie case of race discrimination<2>, she did establish
a prima facie case of reprisal. See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545
F.2d 222 (1st Cir. 1976) and Frye v. Department of Labor, EEOC Request
No. 05940764 (December 15, 1994).
Specifically, the AJ found that S issuing a lower than normal rating just
a few days after learning of appellant's EEO activity was sufficient to
establish an inference of reprisal. However, the AJ also determined that
the ACC rating official (RO)<3> articulated a legitimate nondiscriminatory
reason for justifying the �fully successful� rating, when she stated
that appellant had lost interest in performing her ACC duties, and was
instead focusing her time and attention on the start up activities in
the PCC. S and RO also indicated that they declined to change the rating
because the information provided by appellant's former supervisor in ACC
and the physician in PCC, only reflected that she did the work she was
expected to perform. The AJ found that appellant 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 S and RO testified credibly on both points, and that there was no
evidence to discount these explanations.
The agency's FAD adopted the AJ's RD. On appeal, appellant restates
arguments previously made at the hearing. The agency responds by
restating the position it took in its FAD, and requests that we affirm
its FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We find that the AJ gave full and
thoughtful consideration to the arguments presented at the hearing and
rendered the correct decision in this case. Therefore, we discern no
basis upon which to overturn the AJ's finding of no discrimination
and no reprisal. In this regard, the AJ made specific credibility
findings which are entitled to deference due to the AJ's first-hand
knowledge, through personal observation, of the demeanor and conduct
of the witnesses. See Esquer v. United States v. U.S. Postal Service,
EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of
the Treasury, EEOC Request No. 05900589 (July 26, 1990). Accordingly, it
is the decision of this Commission to AFFIRM the FAD, as CLARIFIED herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
October 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1This rating was
issued several months late to appellant due to
the transfer from the ACC to the PCC.
2The AJ found that appellant produced no evidence to support a prima
facie case of race discrimination. In its FAD, the agency rejects this
analysis, suggesting that a prima facie case is instead defeated because
of a lack of a comparator given appellant's unique work assignment with
the PCC. In so finding, the FAD ignores the possibility that appellant
might have produced some other evidence, exclusive of comparative
evidence, to establish the initial inference of discrimination. We find
that the AJ's holding that appellant produced no evidence at all to
establish a prima facie case is valid. We CLARIFY the FAD accordingly.
3During most of the rating period at issue, appellant was assigned to ACC,
and supervised by an individual who issued her a summary rating because
she transferred to PCC prior to the end of the rating period. However,
while appellant was still with ACC, this supervisor left and RO became
appellant's supervisor. RO referred her PA to S, her PCC supervisor.