01973376
09-14-1999
Christina J. Proehl, Appellant, v. William S. Cohen, Secretary, Department of Defense, (National Imagery & Mapping Agency), Agency.
Christina J. Proehl, )
Appellant, )
) Appeal No. 01973376
v. ) Agency No. AC-91-24
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(National Imagery & )
Mapping Agency), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of sex (female), 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 when: (1) on October 30, 1990, she received a
�Highly Successful� performance rating for the period ending September
30, 1990; and (2) on March 27, 1991, she found out that she was the only
person in her section who did not get an award. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
During the relevant time, appellant was employed as a Cartographer at
the agency's Digital Products Department, Terrain Feature Division II,
Production Support Office, St. Louis, Missouri. The record reveals
that appellant and the other cartographers were rated on five critical
elements: (1) Productivity, (2) Quality, (3) Timeliness, (4) Managing
Product Area, and (5) Contribution to Organizational Effectiveness.
Appellant received �Fully Successful� ratings for elements (4) and (5),
and �exceeds� for the remaining elements. The following represents the
breakdown of appellant's co-workers as well as their respective ratings
and awards:
Comparative 1 (male) Highly Successful $329.00 award
Comparative 2 (male) Records Not Available
Appellant (female) Highly Successful No award
Comparative 3 (male) Outstanding No award
Comparative 4 (female) Outstanding Quality Step Increase
Comparative 5 (male) Highly Successful $329.00 award
Appellant alleged that her performance during the rating period in
question merited an �Outstanding� rating, rather than �Highly Successful�.
In support of this claim, appellant alleged that towards the end of the
rating period, she was assigned to a detail where she worked on the
Combined Federal Campaign (CFC). During that time, she alleged that
she did an outstanding job, but was not recognized for her efforts in
her performance rating. Appellant provided a statement from her then
temporary supervisor who stated that appellant did an outstanding job
while on the CFC. Furthermore, appellant testified that Comparative 5
received an award, and was given sole credit for organizing equipment
inventory. Appellant contended that she assisted Comparative 5 with this
assignment and provided a note from Comparative 5, which stated that
appellant did in fact help him with the inventory during the months of
July and August 1990. Appellant testified that the female comparative
received her �Outstanding� rating because she is �stereotypically
feminine, young, thin, attractive, non-threatening, and defers problem
solving to men.�
Appellant testified that she assisted the office when others wouldn't,
worked overtime, canceled a trip to Washington, DC at her supervisor's
request, and helped put out a fire which had started in the office.
Finally, she contends that her first line supervisor (male) did not assign
appellant's unfinished jobs while on her detail to the CFC, but instead
decided to keep them in appellant's name. As such, appellant's processing
statistics fell, and were reflected as such in her performance rating.
Believing she was a victim of discrimination, appellant sought EEO
counseling, and initially alleged that the agency discriminated against
her on the basis of reprisal because she worked for the CFC. Then,
appellant filed a formal complaint of discrimination on September 20,
1991, alleging that the agency had discriminated against her on the
basis of sex when it committed the above acts. Thereafter, the agency
notified appellant that she needed EEO Counseling for her allegation
of discrimination on the basis of sex. On January 31, 1992, the agency
issued a final decision (FAD #1) dismissing appellant's first allegation
for failure to state a claim. FAD #1 also stated that appellant failed
to timely raise sex as a basis in her complaint.
Appellant appealed FAD #1 to the Office of Federal Operations (OFO). See,
Proehl v. Secretary of Defense, EEOC Appeal No. 01921783 (June 17, 1992).
Therein, OFO found that appellant should not be penalized for technically
framing her first allegation incorrectly, and also found that appellant
had made timely EEO contact with respect to her second allegation. Id.
Thereafter, the agency filed a Request for Reconsideration of the
Commission's decision. See, Proehl v. Secretary of Defense, EEOC Request
No. 05920841 (June 2, 1993). Therein, the Commission determined that
appellant had not alleged discrimination on the basis of reprisal, and
also found that the prior Commission decision prematurely ruled on the
timeliness of appellant's EEO contact. Id.
Subsequently, appellant's allegations were investigated by the agency,
and on May 20, 1994, the agency issued a second final decision (FAD #2).
Therein, the agency rejected appellant's first allegation on the basis
of untimely EEO contact. Appellant appealed FAD #2 to OFO, which
affirmed the agency's decision. See, Proehl v. Secretary of Defense,
EEOC Appeal No. 01944311 (November 1, 1994). Appellant subsequently
filed a Request for Reconsideration, wherein the Commission found
that appellant had in fact made timely EEO contact, and remanded the
allegation for investigation. See, Proehl v. Secretary of Defense,
EEOC Request No. 05950238 (June 22, 1995).
Thereafter, the agency made a settlement offer to appellant in the amount
of $329.00. Apparently, appellant rejected the offer. The agency then
dismissed appellant's complaint for failure to accept an offer of full
relief (FAD # 3). Once again, appellant appealed the agency's decision
to OFO, which found that the appropriate performance award amount could
not be determined until the agency determined if the 1990 rating was
appropriate. The agency then accepted and investigated appellant's
complaint.
At the conclusion of the investigation, appellant requested that the
agency issue a final agency decision. The FAD concluded that appellant
failed to establish a prima facie case of discrimination because she
presented insufficient evidence that similarly situated individuals
not in her protected classes were treated differently under similar
circumstances. Although appellant cited Comparative 3 as being treated
more favorably than she when he was issued an �Outstanding� rating,
the agency found that Comparative 3 was on a detail during the bulk of
the rating period, and had therefore not been rated on the same elements
as appellant.
With respect to appellant's second allegation, the agency found that
appellant had established a prima facie case, but that the agency had
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, appellant's first line supervisor testified that
appellant was a good performer, but that her performance did not merit
an �Outstanding� rating or award. Moreover, appellant's supervisor
testified that with respect to element (4), that appellant received a
fully successful because, among other factors, only 90% of her assigned
data sets were removed from her directory within two weeks following the
end of the month.<1> As this amount was within the �fully satisfies�
rating, that is the rating that she received. Although this was not the
deciding factor for the rating, it did impact the rating for that element.
With respect to element (5), the supervisor testified that he had no
knowledge that appellant assisted Comparative 5 with the equipment
inventory assignment, and had no knowledge that appellant had forgone
a trip to Washington, DC at his request. Furthermore, he stated that
Comparative 3 received his rating and award due to his then supervisor's
rating while he was on a detail assignment. The Supervisor admitted
that he did not consider appellant's work on the CFC in his rating
and awards, and does not know how her performance while working on
the CFC would have impacted her rating. He also testified, however,
that he never received any information on appellant's performance from
her then supervisor on her CFC efforts, on which to base an evaluation.
Finally, the supervisor distinguished appellant's performance from that
of Comparative 1, who had the highest productivity in the office.
Appellant's second level supervisor (male) testified that he supported
the supervisor's rating of appellant. He testified that the examples
appellant provided with respect to reasons why her rating should be
higher are part of the Cartographers day to day activities. Furthermore,
he agreed that appellant's rating was appropriate given that she was an
average worker.
Finally, Comparative 4 (female) testified that other co-workers did
appellant's work while she was assigned to the CFC. Furthermore, she
testified that the supervisor treats men and women equally in their
work relationships.
Appellant makes no new contentions on appeal, and the agency asks that
we affirm the FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), the Commission agrees with the agency that appellant
failed to prove, by a preponderance of the evidence, that the agency's
articulated reasons for its actions were pretext for sex discrimination.
Although appellant provided some support for her contentions that she
did more work than she was recognized for, we find that appellant has
produced insufficient evidence which proves that the supervisor was
aware of these examples, yet failed to take them into consideration on
her rating due to her sex.
Furthermore, we note that appellant's rating for element (4) was
consistent with the standards applied to that element. Testimony from
the supervisor and Comparative 4 also revealed that appellant's work was
completed by others while she was on the detail, and for that reason,
her contention that her statistics fell because she was not present to
work on her assignments is not plausible. Moreover, she has failed to
show that her productivity merited an award as in Comparative 1's case,
or that her organizational assistance was better than Comparative 5's.
Finally, we note that appellant has produced no evidence, including
statements from witnesses, that the supervisor was motivated by a
discriminatory animus towards her sex when he issued her a �Highly
Successful� rating and did not issue her an award.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, 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:
9/14/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The Supervisor
testified that such information is tracked in order
to determine whether the employee is cleaning up
his or her directory in order to free up space
on the hard drive.