01974011
05-23-2000
Diane M. Zilinskas v. Department of Veterans Affairs
01974011
May 23, 2000
Diane M. Zilinskas, )
Complainant, )
) Appeal No. 01974011
v. ) Agency No. 95-1852
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
)
DECISION
Complainant timely filed an appeal with the Commission from a final
decision of the agency concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.; and Section 501
of the Rehabilitation Act of 1973, 29 U.S.C. � 791. Pursuant to 64
Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405),
the Commission accepts the complainant's appeal from the agency's final
decision in the above-entitled matter.<1>
The issue presented in this appeal is whether the agency discriminated
against complainant on the bases of mental disability (adjustment
disorder) and reprisal (four prior EEO complaints filed between 1990 and
1992) by giving her an overall performance appraisal rating of "highly
successful" rather than "outstanding" for the performance period between
April 1, 1994 and March 31, 1995.
Complainant raises a claim of disparate treatment based on disability and
prior EEO activity. To prevail on her claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For the purposes of this
analysis, we will assume, arguendo, that complainant is an individual
with a disability. 29 C.F.R. � 1630.2(g). To establish a prima facie
of reprisal, complainant must show: (1) that she engaged in protected
EEO activity; (2) that the agency was aware of that activity; and (3)
that she was subjected to an adverse action at such a time or in such
a manner as to support a causal connection between the two events.
Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,
1994). The burden then 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). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
In this case, complainant brought her previous EEO complaints three years
before she received the performance evaluation at issue. The agency
concluded in its final decision that three years was too long a time
frame to establish the necessary nexus. Complainant responded on
appeal that she identified the official who signed off on her 1995
performance evaluation (approving official) in at least one of her
previous complaints. We agree that this is sufficient to establish a
prima facie case of reprisal. The rating official, who was complainant's
supervisor, testified that complainant made too many errors in dispensing
medication to patients, and that this was the reason that she did not
receive an "outstanding" evaluation. IE B-7, pp. 1-3. The approving
official testified that he did not overrule or change any evaluations
given by the supervisors under his authority in 1995. IE B-6, p. 3.
Complainant has not presented any documents or testimony tending to
show that the approving official exerted any pressure or otherwise tried
to influence the rating official, in terms of lowering her performance
evaluation. She has likewise not presented any evidence that contradicts
the testimony offered by the rating official, or that undermines his
credibility as a witness.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that disability discrimination or reprisal had occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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.;
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:
05-23-00
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
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.