01985722
03-31-2000
Clothilda Higgs, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Clothilda Higgs v. Department of the Treasury
01985722
March 31, 2000
Clothilda Higgs, )
Complainant, )
) Appeal No. 01985722
v. ) Agency No. 98-3031
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
The complainant timely initiated an appeal of a final agency decision
(FAD), concerning her complaint of unlawful employment discrimination
on the bases of race (African-American), sex, color (black), national
origin (Bahamian), reprisal (prior EEO activity), age (July 21, 1957),
and physical disability (visual impairment), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the Commission
AFFIRMS the agency's FAD.
BACKGROUND
The record reveals that during the relevant time, the complainant
was employed as a GS-11 Internal Revenue Agent (IRA), at the agency's
Internal Revenue Service, Brooklyn District facility. The complainant
alleged that she was discriminated against when on July 22, 1997,
she received a performance appraisal for the period covering May 31,
1996, to June 30, 1997, with an overall rating of "Fully Successful,"
in which two critical element ratings were downgraded from "4s" to
"3s." The record shows that the complainant received an overall "Fully
Successful" rating for the previous period as well. The record also shows
that two critical elements of her 1997 rating (issue identification and
customer relations), were reduced from "4s" to "3s" which resulted in
no change to her overall rating.
Believing she was a victim of discrimination, the complainant sought
EEO counseling and, subsequently, filed a complaint on November 8, 1997.
At the conclusion of the investigation, the complainant requested that
the agency issue a FAD.
The agency concluded that the complainant had established prima facie
cases of discrimination on the bases of race, sex, color and national
origin, when she demonstrated that similarly situated employees, those
rated by the same Branch Chief (BC) for the same period of time, not
in her protected classes received higher performance ratings, and thus,
were treated differently than her under similar circumstances.
The agency concluded that the complainant failed to establish prima facie
cases of discrimination based on age, physical disability or reprisal.
Specifically, the agency found no prima facie case of age discrimination
because other similarly situated employees older than the complainant
received "Fully Successful" and "Exceeds Fully Successful" ratings.
Additionally, the agency found that there was no medical documentation
in the record to show that the complainant was impaired in a major
life activity, nor any supporting evidence to show she was perceived to
be disabled, thus she failed to make a prima facie case of disability
discrimination. Also, the agency found that although the complainant
had previously participated in the EEO process and that the BC was aware
of that participation, the complainant failed to show that the overall
rating of "Fully Successful" was an adverse employment action and thus,
she failed to make a prima facie case of reprisal discrimination.
The agency assumed, however, that the complainant had made prima facie
cases of discrimination on all her stated bases and proceeded to find that
management's articulated reasons for the complainant's performance ratings
were legitimate and supported by the record. The BC averred that he had
based the complainant's ratings on both his observation of her work and
on the data contained in the complainant's personnel file. The record
shows that during the relevant rating period, the complainant's division
was overseen by her previous manager for approximately six months and
then for two ninety day periods by temporarily promoted IRAs. The record
also contains several workload reviews, case reviews and contact memoranda
showing examples of the complainant's lack of case development, excessive
time charged per case and other examples of her questionable performance.
The agency subsequently found that the complainant's pretext arguments
failed to show that the agency's articulation of its action was based
solely on her documented performance and not on any discriminatory basis.
Moreover, the agency found that the complainant had failed to offer any
argument or evidence to show that management's articulation was pretext
or that she deserved a higher rating than she received. Thus, it found
that management's articulation was sufficient to rebut the inference of
discrimination or reprisal established by the prima facie cases.
On appeal, the complainant contended that the agency failed to consider
a number of her arguments. Specifically, she asserted that the agency
failed to consider the comments which she submitted upon receiving a
copy of the investigative file (IF) showing that there were a number of
false/incorrect/misleading documents and statements in the IF and that
the BC had no right to review her closed cases. She further asserted
that some of the documents which were allegedly in her personnel file,
she had never seen, evidenced by the fact that they do not contain her
initials. The complainant also contended that the agency purposely
failed to look at one comparative employee (LM) whom she had named.
The complainant reasserted that she is a qualified disabled person and
that the agency intentionally withheld reasonable accommodation.<2>
In its response to the complainant's appeal, the agency restated that
the complainant alleged no harm as a result of the same overall rating
she received the previous year, nor did she allege she was denied an
award as a result of the rating. The agency further argued that the
complainant's mere disagreements with management's assessment of her
performance without additional evidence is not enough to prove her claims
of discrimination. The agency asserted that it did not consider LM a
similarly situated individual with the complainant because LM was a GS-12
Revenue Agent acting as a manager during the rating period, and that she
was not employed within the same group as the complainant at the time the
complainant received her performance review. The agency contended that
the complainant mischaracterized the FAD's finding of her as a disabled
employee and points to the FAD's further analysis where it assumed for
the purpose of argument that the complainant had made a prima facie case
of disability discrimination. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), 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 the complainant failed to
establish a prima facie case of physical disability discrimination. Also,
the Commission agrees with the agency that she did establish prima facie
cases of discrimination based on sex, race, color and national origin.
However, the Commission disagrees with the agency that she failed to
establish a prima facie cases of age discrimination and reprisal.
Disability Claim
To bring a claim of disability discrimination, the complainant must first
establish that she has a disability within the meaning of the Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
See Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133 (1999); Sutton
v. United Air Lines, Inc., 119 S.Ct. 2139, 2141-42 (1999); Albertsons,
Inc. v. Kirkingburg, 119 S.Ct. 2162, 2167-68 (1999).<3> An individual
with a disability is one who has, has a record of, or is regarded as
having a physical impairment that substantially limits one or more of
her major life activities. 29 C.F.R. � 1630.2(g). Major life activities
include functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning and working.
29 C.F.R. � 1630.2(i). The record in this case does not contain any
medical evidence of the complainant's alleged vision problem, despite
her arguments on review that she is blind and that the agency knew it.
We find that the complainant had a duty to submit evidence, surely within
her control, supporting her claim of physical disability. However,
as did the agency, we will assume that the complainant did establish a
prima facie case of disability discrimination in our further McDonnell
Douglas analysis.
Age and Reprisal Claims
To prevail in a claim of age discrimination under the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., the
complainant must satisfy the three-part evidentiary scheme fashioned by
the Supreme Court for Title VII cases in McDonnell Douglas, 411 U.S. at
802-05. However, in alleging a case of age discrimination the complainant
need not demonstrate that age was a determinative factor as part of
her prima facie case. Instead, that question is addressed when the
trier of fact makes a decision on the ultimate issue of discrimination.
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).
The ultimate burden remains on the complainant to demonstrate by a
preponderance of the evidence that age was a determinative factor in
the sense that, "but for" her age, she would not have been subjected
to the action at issue. See Loeb v. Textron, Inc., 600 F.2d 1003,
1019 (1st Cir. 1979); Fodale v. Department of Heath and Human Services,
EEOC Request No. 05960344 (October 16, 1998).
Here, the agency found that the complainant failed to show a prima
facie case of age discrimination because other similarly situated IRAs
older than the complainant received "Fully Successful" or "Exceeds Fully
Successful" ratings. We find that this argument has no merit because
the complainant's claim is not that she received a "Fully Successful"
rating, it is that she was rated lower in two critical element areas.
Based on the standards set forth in McDonnell Douglas, 411 U.S. at 792
and Loeb, 600 F.2d at 1003, the Commission disagrees with the agency
that the complainant failed to establish a prima facie case of age
discrimination. In reaching this conclusion, we note that the complainant
established that she was over forty years of age and that she received a
downgraded performance rating. Accordingly, we find that the complainant
established a prima facie case of age discrimination. See Fodale, EEOC
Request No. 05960344.
As to reprisal discrimination, the Commission has set forth the criteria
for reprisal cases, as follows:
To establish a prima facie case of reprisal discrimination, the
complainant must show that (1) she engaged in prior protected activity;
(2) the acting agency official was aware of the protected activity; (3)
she was subsequently disadvantaged by an adverse action; and, (4) there
is a causal link . . . . The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted). Here, the record shows that the Complainant
had participated in previous EEO activity and that the BC knew of this
activity. The record shows that in November 1996, the complainant filed
an EEO compliant against her previous manager whom she reported to for
the first six months of the reporting period in question. Her previous
manager reported directly to the BC. We find that the complainant
established a prima facie case of reprisal discrimination because a
reprisal motive is inferred under these circumstances.
McDonnell Douglas Standards
To prevail in a claim such as this, the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas, 411 U.S. at 792, must
be satisfied. First, the complainant must establish a prima facie case
by demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Here,
the complainant has met this burden.
The burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Here, the BC averred that
he had based the complainant's ratings on both his observation of her work
and on the data contained in the complainant's personnel file. The BC
also stated that he had personally reviewed two of the complainant's
case files and noted errors in both. The record here, contains several
workload reviews, case reviews and contact memoranda that support the
BC's statement of the complainant's lack of case development, excessive
time charged per case and other examples of her questionable performance.
Specifically, the record contains a mid year workload review wherein
the complainant was rated as "fails - 2" in issue identification and
"Meets - 3" in customer relations. This workload review contains an
annotation that it was shared with the complainant and she refused to
discuss or sign it. The record here, is sufficient to establish that the
agency's articulated reasons for lowering two critical elements of the
complainant's performance rating were legitimate and nondiscriminatory.
To ultimately prevail, the complainant must prove by preponderant
evidence that the agency's explanation is nevertheless a pretext for
discrimination. See St. Mary's Honor Center, 509 U.S. at 519; Pavelka,
EEOC Request No. 05950351. Here, the complainant contended that the
agency failed to consider the comments she submitted after receiving the
IF, showing that the IF contained a number of false/incorrect/misleading
documents and statements. Additionally, she contended that the BC had no
right to review her closed case files and that the agency failed to look
at LM. We find, however, that the record as a whole does not support the
complainant's bare assertions of mistruths. Moreover, the complainant
fails to point to any rule, regulation or policy which forbids a reviewing
official (second level supervisor, i.e., BC) from personally reviewing
the case work of subordinate employees. We agree with the agency that LM
was not a similarly situated employee with the complainant because LM was
a higher grade than the complainant and was also temporarily acting as
a manager during the rating period in question, unlike the complainant.
Thus, we find that the complainant failed to present evidence that more
likely than not, the agency's articulated reason for reducing the ratings
on her 1997 appraisal were a pretext for unlawful discrimination.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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.
and 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:
March 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date ________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 We note that the record shows that the complainant withdrew her
reasonable accommodation claim in writing on December 4, 1997.
3 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.