Constance F. Zarbo, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionJan 27, 2000
01975291 (E.E.O.C. Jan. 27, 2000)

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.