Clothilda Higgs, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 31, 2000
01985722 (E.E.O.C. Mar. 31, 2000)

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.