01976754
11-04-1999
Carolyn J. West, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Carolyn J. West, )
Appellant, )
) Appeal No. 01976754
v. ) Agency No. 930921
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) 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.
Appellant alleges that the agency retaliated against her for prior
EEO activity when she was denied a promotion to the GS-9 level; she
received inaccurate performance appraisals without input addressing
her deficiencies; and she performed higher grade level duties while
remaining at a lower grade level. The Commission accepts the appeal
in accordance with EEOC Order No. 960.001. For the following reasons,
we affirm the FAD.
The record reveals that during the relevant time, appellant worked
as a GS-7 Computer Specialist in the Network Control Center (NCC) at
an agency facility in New Orleans, Louisiana. Believing the agency
discriminated against her as referenced above, appellant sought EEO
counseling and subsequently filed a complaint on September 21, 1993.
The agency originally issued a final decision which failed to address
all of appellant's allegations. On appeal, the Commission vacated the
original decision and remanded the matter to the agency to clearly and
adequately set forth its findings of fact and conclusions of law with
respect to each issue. The agency complied with the Commission's order
and issued a second final decision on July 28, 1997, from which appellant
now appeals. Neither party has submitted a statement in support of or
in response to the appeal.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that appellant failed to establish
a prima facie case of retaliation. In reaching this conclusion,
we note that as a result of the settlement agreement resolving her
prior EEO complaint, the agency transferred appellant into the NCC.
Although her supervisor at the NCC knew that appellant's transfer was
in connection with an EEO settlement agreement, her supervisor was not
involved in the prior EEO activity and was unacquainted with its details.
Appellant proffers no evidence that the alleged discrimination followed
her protected activity at such a time and in such a manner as to permit
an inference of retaliatory motivation. See Devereux v. United States
Postal Service, EEOC Request No. 05960869 (April 24, 1997). Therefore,
after a careful review of the record, we affirm the FAD.
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:
November 4, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations