01975291
01-27-2000
Constance F. Zarbo, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Constance F. Zarbo v. Department of Commerce
01975291
January 27, 2000
Constance F. Zarbo, )
Complainant, )
) Appeal No. 01975291
v. ) Agency No. 96-54-0081
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
retaliation based on prior EEO activity and discrimination based on
age (DOB 2/21/32), race (White), color (White), and sex (female), in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621, et seq.<1> Complainant
alleges she was subjected to retaliation and discrimination when: (1)
on August 31, 1995, she learned that her request for training (Certified
Facilitator) was not approved, but that of a younger female was approved;
(2) on August 31, 1995, management officials reminded her that they
anticipated her retirement pursuant to a buyout; (3) on or about October
20, 1995, management officials failed to submit a group Bronze Medal
Award nomination, for which she was a candidate; and (4) since 1991,
management has failed to take definitive action on a proposal to promote
her to GS-14 by accretion of duties, whereas younger employees have been
hired at or promoted to GS-14.<2> The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the FAD is
AFFIRMED IN PART and REVERSED IN PART.
The record reveals that during the relevant time, complainant was employed
as a Program Analyst (GS-13) at the agency's Systems Acquisition Office
(previously known as the Systems Program Office (SPO)),<3> Office of
the Undersecretary and Administrator, National Oceanic and Atmospheric
Administration (NOAA), in Washington, D.C. The agency established the
SPO in 1991 to handle delivery and implementation of several major
technological modernization systems. Within the SPO at that time
were various support divisions or program offices. When the events
giving rise to the instant complaint began, complainant was assigned
to the program office that serviced the Next Generation Radar (NEXRAD)
program. In mid-1991, she was detailed for 120 days to the Planning and
Organizational Development staff (POD), where she remained until July,
1993, when she returned to the NEXRAD program office. During this time,
complainant reported to a number of different supervisors. From mid-1991
through part of 1992, her immediate supervisor (S1) was the POD Team
Leader (female). S1 was a GS-14 employee who had laterally transferred
from another agency. Complainant's second-line supervisor during
this time period was an SPO Deputy Director (S2). In August, 1992,
S1 began an extended leave, and complainant became Acting Team Leader
from August through December, 1992, with no increase in pay. In late
December, 1992, a male GS-15 (age, race unknown) succeeded complainant
as Acting Team Leader.
The record contains an unsigned memorandum, dated December 1, 1993,<4>
from the SPO Director (S3), complainant's third-line supervisor, to
the agency's Personnel Officer, requesting a temporary promotion for
complainant because from July to September 1991, she had performed duties
that were subsequently assumed by her Team Leader, and since September,
1992, had been serving as Acting Team Leader. The memorandum also
contains a request to temporarily promote another GS-13 program analyst
(Caucasian, female, DOB 7/31/51). No response is reflected in the record.
The record contains an affidavit from the Program Manager for Virtual
Data, National Environmental Satellite Data and Information Services
(PM1), who attests that when he asked S3 whether S3 was going to approve
a pending recommended personnel action for complainant's promotion
initiated by the NEXRAD Program Manager upon complainant's return to his
organization, S3 stated that due to complainant's age, he would not do so.
Specifically, PM1, a Senior Executive Service employee, attested:
When I inquired of [S3] whether he was going to approve [complainant's]
promotion, he responded by indicating that [complainant] was to[o] old to
fit into the organization. [S3] either stated or implied that he wanted
younger, aggressive people in his organization.
Record of Investigation (ROI), Exhibit 18 at 4.
From January through March, 1993, complainant applied for two GS-14
vacancies, but was not selected for either. The selectees were a
36-year-old African-American female and a White female whose age is
not reflected in the record, but whom complainant asserts is younger
than her. Complainant also attests that she inquired about a promotion
by accretion of duties in January and April, 1994, and June and August,
1995, and that each time her request was denied or not acted upon.
In March, 1995, the agency made available Voluntary Separation Incentive
Payments (buyouts), pursuant to which employees could retire or resign
with an incentive payment. Complainant applied and on April 6, 1995,
accepted the agency's offer of a buyout with a deferred retirement date
of March 31, 1997. In September, 1995, complainant withdrew her request
for a buyout.
In August, 1995, prior to withdrawing her request for a buyout,
complainant and her then-immediate supervisor requested agency approval to
attend a Master Facilitator Certification Program, a part-time 160-hour
course costing $3,900 per student. The NEXRAD Acquisition and Program
Managers approved both requests, but a Deputy Director of SPO (S4)
denied final approval for complainant's request, while approving her
supervisor's request. Complainant asserts that when she asked the
NEXRAD Program Manager (S5) why her request was denied, he told her
that S4 had cited complainant's then-pending retirement and stated
that she was too old to take the training. S5's affidavit denies that
S4 remarked on complainant's age, and instead asserts that S4 stated he
denied complainant's training request because it was not cost effective
to have two facilitators within NEXRAD, and because of complainant's
then-pending retirement. ROI, Exhibit 11 at 4-5.
In October, 1995, S5 submitted nomination papers for complainant and three
other employees to be considered for an agency Bronze Medal in recognition
of her group's efforts on a community relations and outreach program.
He also nominated employees from other two other teams. Complainant's
group's nomination was not approved by the agency nominating panel,
the second group's nomination was approved, and the record does not
reflect the outcome of the third nomination.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint. Certain claims
were dismissed. See n.2, supra. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency. Complainant requested that the agency issue a FAD.
In its FAD, the agency concluded that complainant established a prima
facie case of discrimination based on race, color, sex, or age with
respect to claim (1) (denial of training course), and established a
prima facie case of age discrimination with respect to claim (2) (comment
regarding retirement).<5> The FAD further found that complainant failed
to establish a prima facie case of discrimination with respect to claim
(3) bronze medal nomination, and claim (4) failure to promote based on
accretion of duties. With respect to complainant's retaliation claim,
which applies only to claim (3) (bronze medal nomination), the FAD found
that complainant failed to establish a prima facie case because the
evidence established that the responsible management official's actions
at issue occurred before he learned of complainant's protected activity.
The FAD further found that even assuming arguendo complainant established
a prima facie case on each of her claims, she failed to establish by a
preponderance of the evidence that the agency's proffered explanations
for its actions were a pretext for discrimination or retaliation.
On appeal, complainant contends that the FAD failed to consider S3's
statement to PM1 as direct evidence of age discrimination by S3, namely
that he made the above-referenced statement expressly indicating a
discriminatory motive for denying complainant's promotion. The agency
has not responded to this contention on appeal. Although complainant's
brief contains a certificate of service indicating it was mailed to the
agency, the agency asserts in its brief that it never received any brief
from complainant, and the agency stands on the record and requests that
we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,
U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), we
concur with the FAD's analysis as to claims (1) and (3). As noted supra,
we treat claim (2) as evidence of alleged discriminatory motive rather
than as stating an independent claim.
However, with respect to claim (4) (failure to promote by accretion
of duties), we reverse the FAD. The FAD failed to make any mention of
significant direct evidence of discriminatory motive in the record.
As noted above, PM1, a Senior Executive Service employee, specifically
attested that S3 told him he was going to deny complainant's request
for promotion by accretion of duties because she was "too old to fit
into the organization," and he wanted younger, aggressive people in
his organization. ROI, Exhibit 18 at 4. We find this direct evidence
of age-based discriminatory motive to be credible, notwithstanding S3's
assertion that he denied complainant's requested promotion by accretion
of duties for non-discriminatory reasons.
Direct evidence of discrimination may include any action, or any written
or verbal policy or statement made by an agency official that on its
face demonstrates a bias against a protected group and is linked to the
complained of adverse action. Jaakkola v. Department of Commerce, EEOC
Request No. 05950390 (August 29, 1996); see, e.g., Grant v. Hazelett Strip
Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989) (direct evidence of age
discrimination found where decisionmaker said in a memo that he wanted a
"young man . . . between 30 and 40 years old" and verbally that he wanted
"a young man and that's what I want and that's what I'm going to have").
The McDonnell Douglas test is inapplicable where complainant presents
direct evidence of discrimination. TWA v. Thurston, 469 U.S. 111,
121 (1985); see also Terbovitz v. Fiscal Court of Adair County, Ky.,
825 F.2d 111 (6th Cir. 1987) ("[d]irect evidence of discrimination,
if credited by the fact finder, removes the case from McDonnell Douglas
because the plaintiff no longer needs the inference of discrimination
that arises from the prima facie case [using indirect evidence]"); Siao
v. Department of Justice, EEOC Request No 05950921 (September 12, 1997).
Where direct evidence is credited in an ADEA case, the case should be
analyzed pursuant to the "mixed motive" analysis set forth in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under this analysis, the
agency can still avoid liability if it demonstrates by a preponderance
of the evidence that it acted on the basis of both lawful and unlawful
reasons, or if the agency can otherwise establish an affirmative
defense to liability. See Gregan v. Department of Defense, EEOC Request
No. 05940199 (October 20, 1995).<6>
The agency's proffered legitimate, non-discriminatory reasons for
complainant's non-promotion, include, inter alia: (1) by the time S3
assumed directorship of SPO, an organizational structure had already
been devised with grades higher than those he felt could be supported,
and S3 determined that there were too many proposed positions at the
GS-14 and GS-15 levels; (2) complainant did very good work during the
1992 rating period, but her performance declined slightly in 1993;
(3) complainant had a very high opinion of her own abilities, but S3
did not believe that complainant worked consistently at the GS-14 level,
and she required more guidance than is expected of a GS-14; (4) in 1993,
S3 began hearing that complainant was not getting along with certain
persons (whom he did not identify) and not completing assignments,
and he was surprised to learn that her 1993 rating was "outstanding";
(5) in 1993, the NEXRAD Program Manager presented S3 with a request to
promote complainant to GS-14, but did not seem enthusiastic about it,
and S3 saw no reason to approve the request if complainant's supervisor
did not truly support it; (6) S3 does not recall the December 1, 1992 or
1993 memorandum in which he requests complainant's temporary promotion to
GS-14, and in any event his assessment of her performance changed in 1993;
(7) S3 knows of no other Program Analyst promoted by accretion of duties,
and the three other GS-14 Program Analysts identified by complainant as
comparators were all hired or promoted through the competitive process.
We find that the agency has not established by a preponderance of
the evidence that there was a mixed motive for complainant's denied
promotion, i.e. that in addition to age, there existed a lawful reason
why complainant was denied promotion by accretion of duties. In reaching
this conclusion, we note that the agency's assertion that complainant's
work performance declined in 1993 and thereafter is belied by the fact
that she received "outstanding" performance ratings in 1993, 1994, and
1995. In addition, the NEXRAD Program Manager recommended in October,
1993 that complainant be promoted to a GS-14 by accretion of duties.
Although the NEXRAD Program Manager now asserts that his recommendation of
complainant's promotion should be disregarded because he did not believe
her promotion was warranted, we do not find this assertion credible.<7>
Further, whereas the FAD correctly concludes that complainant's claim for
relief is limited to the continuing violation comprised of the repeated
denials from January, 1994 onward of her requests for promotion by
accretion of duties, this does not preclude the relevance, as background
evidence, of complainant's non-selection in favor of a series of her
co-workers for competitive promotions to GS-14 positions during the
relevant time frame. Moreover, the FAD disregards three affiants'
testimony regarding complainant's ability and duties being commensurate
with a GS-14 grade, on the ground that the affiants were not complainant's
direct supervisors, whereas this testimony is probative at least with
respect to the witnesses' observations. Whereas the FAD, at 22, finds
that complainant did perform "intermittently at the GS-14 level," it
fails to credit the testimony of complainant and a GS-15 co-worker (AA)
that they were performing the same duties, as well as testimony by other
witnesses who observed complainant continuously perform GS-14 duties.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD with
respect to claims (1) and (3), as well as claim (4) with respect to the
bases of race, color, and sex, but we REVERSE the FAD as to claim (4) on
the basis of age discrimination in the denial or promotion by accretion
of duties, and remand this case to the agency to take remedial action
in accordance with this decision and order below.
Although complainant has requested compensatory damages and
attorney's fees, we note that federal sector complainants prevailing
on discrimination or reprisal claims under the ADEA cannot recover
compensatory damages or attorney's fees. Falks v. Department of Treasury,
EEOC Request No. 05960250 (September 5, 1996); Taylor v. Department
of the Army, EEOC Request No. 05930633 (January 14, 1994); Patterson
v. Department of Agriculture, EEOC Request No. 05940079 (October 21,
1994). Accordingly, complainant is awarded back pay and non-monetary
relief in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively promote complainant to a GS-14 position
from January, 1994, when her request for promotion by accretion of
duties was first denied by S3, through the date this decision is issued
or the last date of her employment with the agency, whichever is earlier.
Complainant shall also be awarded back pay, seniority and other employee
benefits from the date of the effective promotion until the present date,
or if she is no longer employed by the agency, then until the last date
of her employment.
2. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501), no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall ensure that no employees who are applicants for
promotion by accretion are subjected to age discrimination in violation
of 29 C.F.R. � 621, et seq.
4. In the event that the supervisors who were found to be responsible
remain employed by the agency, the agency shall provide a minimum of
sixteen (16) hours of EEO training with respect to ADEA, to ensure that
acts of age discrimination do not recur. The agency shall address these
employees' responsibilities with respect to eliminating discrimination in
the workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law, especially the ADEA.
The agency shall take appropriate preventative steps to ensure that no
employee is subjected to age discrimination.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay, attorney's fees and costs, and other
benefits due complainant, including evidence that the corrective action
has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its NOAA Washington, D.C. facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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.;
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:
1/27/00
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
__________________________
Equal Employment Assistant
1On 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.
2Complainant did not appeal an earlier final agency decision, dated
March 19, 1996, dismissing additional claims.
3The Systems Acquisition Office (SAO) was previously called the Systems
Programs Office (SPO), and is referred to in the record variously by
both names. For the sake of clarity, we will refer to it throughout as
the SPO.
4The FAD concludes that although the handwritten date on the memorandum
is December 1, 1993, "the content of the memo, read in conjunction with
the rest of the record, suggests that the correct date is 1992."
5Although the FAD treats as a separate claim complainant's contention
that a supervisor said she was "too old," in the absence of a harassment
claim we do not agree that the comment in and of itself states a claim.
Rather, the alleged comment is properly viewed as potential evidence
of age discrimination with respect to the adverse employment actions
complainant challenges.
6This "mixed motive" analysis differs with respect to Title VII claims,
because the Civil Rights Act of 1991 amended Title VII to provide that
where there is direct evidence of discrimination based on race, color,
religion, sex, or national origin, the employer's demonstration that
it was also motivated by a lawful factor does not bar liability, but
rather precludes an award of damages, reinstatement, hiring, promotion,
and back pay remedies. Cf. Walker v. Social Security Administration,
EEOC Request No. 05980504 (April 8, 1999).
7The NEXRAD Program Manager makes various vague, seemingly
self-contradictory statements in his affidavit regarding the reasons why
complainant was not promoted. He asserts: ". . . there was an attempt
in late 1993 to have [complainant] promoted to the GS-14 grade. Things
were going well in the organization and I was pushing for promotions and
upgrades for a number of employees in the office." Yet, he also asserts:
"[m]y having signed the SF-52 requesting [complainant's] promotion should
not be interpreted that I believed she was performing at a GS-14 grade.
Assuming I did sign the action, it was probably done [] in haste . . . In
signing the SF-52, I only had a marginal belief that [complainant] should
be promoted . . . I did not believe [her] position was at a GS-14 level."
ROI Exhibit 11 at 3-4.