01970912
09-23-1999
Donald A. Kuhl, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Donald A. Kuhl v. Department of Health and Human Services
01970912
September 23, 1999
Donald A. Kuhl, )
Appellant, )
)
v. )
) Appeal No. 01970912
Donna E. Shalala, ) Agency No. OSH-576-93
Secretary, )
Department of Health and Human )
Services, )
Agency. )
_______________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him in
reprisal for having engaged in EEO related activity in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
The issue presented is whether appellant proved that he was discriminated
against, as referenced above, when he received a "Marginally Successful"
performance appraisal on January 11, 1993.
Appellant filed his formal complaint on May 11, 1993.<1> Following an
investigation, he was provided with a copy of the investigative file and
notified of his right to request a hearing before an EEOC Administrative
Judge (AJ) on May 27, 1994. Appellant initially requested a hearing,
but he withdrew that request by letter dated January 20, 1995. The agency
issued a final decision on June 29, 1995. The agency found that appellant
had not been subjected to discrimination based on reprisal. It is from
this decision that appellant now appeals. Appellant did not offer any
new contentions concerning his allegation of discrimination on appeal.
The record indicates that appellant was one of four (4) GS-13 Program
Analysts in the Civil Fraud Unit. His supervisor was A-1, the Assistant
Regional Inspector. A-1 gave appellant a rating of "Marginally
Successful" for the 1992 fiscal year with a total score of 240 points.
The rating was reviewed by A-2, the Regional Inspector General for
Investigations. Appellant's colleagues were C-1, C-2, and C-3. According
to the record, C-1 received a "Fully Successful" rating with a score of
320; C-2 received a "Fully Successful" rating with a score of 320 points;
and C-3 received a "Fully Successful" rating with a score of 330.
The description of Element 2 of appellant's performance appraisal
indicates that the employee:
[w]ill prepare useful and timely reports presenting evidence and
information, case progress, inventory and management and statistical data.
Reports present information in a clear, logical, accurate and complete
manner.
Appellant received a rating of 2 on this critical element.<2> A-1
indicated that, in the first six months of the period, appellant's cases
required revisions because they failed to accurately present information.
She also indicated that a certain category of cases and their reports
were not timely submitted. For the last six months of the period,
A-1 indicated that appellant had written very few reports and that his
sanction cases were not accurate.
The description of Element 3 of appellant's performance apprisal indicates
that the employee:
[p]lans, organizes and manages cases and assignments by effectively
utilizing time and resources available to maximize productivity and
maintain high work quality while meeting established deadlines and
priorities.
Appellant received a rating of 2 on this critical element. A-1 indicated,
in pertinent part, that the time and resources used to complete cases and
assignments did not meet the expectations for appellant's grade level.
A-1 also noted that since over 50% of appellant's cases were returned
for errors, the quality of appellant's sanction cases also did not meet
the expectations of someone at his grade level.
The description of Element 4 of appellant's performance appraisal
indicates that the employee:
[d]evelops and improves work habits, job knowledge and skills, and
maintains interpersonal relationships which aid in job performance and
in accomplishing the mission of OI. This is to be achieved through
effective use of computers, establishing effective liaison, applying
other innovative investigative techniques, making recommendations for
regional projects that are accepted and accepting quality referrals when
reviewing complaints.
Appellant received a rating of 2 on this non-critical element.
A-1 indicated that appellant, who had only recently started using a
computer, had the job knowledge and ability to use computer programs and
techniques in his casework. She noted, however, that over one-half of
his sanction cases were returned to him for corrections because he failed
to proofread and correctly analyze his cases. A-1 also indicated that
appellant did not maintain good interpersonal relationships with the
Special Agents, who investigated healthcare cases. According to A-1,
these agents did not seek out appellant for assistance with projects,
technical questions, help with interviews, visits to the U.S. Attorney's
office, or carrier meetings.
A-1 testified that appellant made many errors in the analysis of his
work. She also indicated that he made numerous spelling and punctuation
errors.<3> According to A-1, appellant did not demonstrate an ability
to read legal documents or to determine the appropriate statute that
would apply. She also testified that appellant was frequently late filing
reports. A-1 provided, in the record, numerous examples of appellant's
"poor work products" during the rating period. She maintained that
his problems were longstanding. She also stated that she provided
appellant with memoranda concerning his errors. According to A-1,
she informed appellant that any case she could not "sign off on" was
considered an error. She also testified that she had many conversations
with appellant about his analysis and her other concerns.
A-2 testified that appellant requested that he, A-2, informally review
his performance rating. According to A-2, he told appellant that if he
wanted to appeal his rating, he had to follow the grievance procedures.
A-2 stated that he discussed the level of appellant's rating with
A-1, after speaking to appellant. A-1 showed him documentation of
appellant's performance during the rating period. A-2 testified that
this documentation established that appellant was not performing at
his grade level.<4> Finally, A-2 indicated that appellant was alerted,
during his mid-year review, of A-1's concerns about his work performance.
According to appellant, he first sought EEO counseling in December 1990,
after he received a Letter of Reprimand for reading at his desk and
leaving work early. The matter, appellant stated, was resolved in the
informal stages. Appellant also filed two EEO complaints in January
1992. Both A-1 and A-2 indicated that they were aware of appellant's
EEO activity.
We find that the FAD addressed the facts and correctly applied the
appropriate regulations, policies and laws. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed,
545 F.2d 222 (1st Cir. 1976)(applying the standard to retaliation cases);
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). After carefully reviewed the agency's articulated reason, we
find that appellant has not established pretext. In so finding, we note
that, although appellant clearly disagreed with the rating in question,
he offered no persuasive evidence that demonstrates that A-1's testimony
was unworthy of belief or that she was motivated by a desire to retaliate
against him. Accordingly, the Commission finds that appellant has not
established reprisal with regard to this issue. Employers generally
have broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by reviewing authorities absent evidence
of unlawful motivation. Burdine, 450 U.S. at 259.
Appellant raised a number of matters in an attempt to establish pretext.
He testified that: 1) A-1 did not inform him that his work was below
the fully successful level at his six-month review; 2) A-1 did not
place him on a Performance-Improvement-Plan (PIP); 3) A-1 approved
his within grade pay increase; 4) A-1 harassed him by requiring him to
submit hourly reports, opening his mail, and assigning his cases to an
inexperienced typist; 5) A-1 threatened him over a routine financial
disclosure; and 6) A-1 manipulated his day-to-day workload causing him
to be less effective.
Like the agency, we do not find that these matters indicate that the
rating was not warranted. We note, however, the following testimony
of A-1 and A-2. With regard to appellant's first contention, A-1
testified that she did not inform appellant that his work was below the
fully successful level at his six-month review because he had already
received a "Minimally Successful" rating the prior year and his work
was at that same level in June 1992. A-1, however, stated that her
comments on appellant's review did not indicate that his performance
was acceptable, but indicated that he should try to improve in a number
of areas. We note that A-2 also testified that appellant was "alerted"
about his deficiencies at the mid-year review.
With regard to appellant's second contention, A-1 stated that appellant
was not placed on a PIP because such placement was not required when an
employee was performing at the marginal level. A-1 indicated that in
her conversations with individuals in the Personnel office, she was told
that placing appellant on a PIP would not accomplish more than the steps
she was already taking. With regard to appellant's third contention,
A-1 stated that appellant received his within grade pay increase because
she thought it was appropriate for someone performing at the minimally
successful level.
With regard to appellant's fourth contention, A-1 testified that
she required appellant to submit hourly reports because of his
poor performance and inability to utilize his time effectively.
A-1 indicated that this requirement began in 1991 and continued into
1992. She testified that another analyst, who had not filed an EEO
complaint, was also placed on an hourly reporting schedule because
her work production was below acceptable levels. According to A-1,
this analyst's work production was higher than appellant's and she had
more cases approved for release in 1992 than he did. A-2 testified
that he was aware of the hourly reporting requirement and thought it
was justified because of appellant's work production. With regard to
opening appellant's mail, A-1 maintained that there was no expectation
of privacy with respect to mail received at the office. A-2, however,
indicated that mail that was marked personal should not have been opened.
He acknowledged, however, that he has had his personal mail opened when
it came to the office. With regard to appellant's contention that his
cases were assigned to an inexperienced typist, A-1 testified that the
typist was experienced and had previously worked on sanctions.
With regard to appellant's fifth contention, A-1 stated that appellant's
SF-86 form, which was used to provide information for background
investigations, was returned because it had not been properly completed.
According to A-1, appellant was repeatedly asked to complete the form,
but he failed to do so. Consequently, she gave him a direct order to
complete the form. A-1 indicated that failing to correctly complete the
form could result in an employee losing his job. Finally, she stated that
the form was not a financial disclosure form as indicated by appellant.
With regard to several specific cases that appellant claims were
manipulated by A-1 in order to cause him to be less effective, A-1
testified that on February 6, 1992, she and appellant discussed Case-1.
According to A-1, she did not see the required medical documentation
in the file. Appellant, she stated, admitted that he had not read
the medical records. On February 10, 1992, A-1 testified that she
asked appellant why he was not spending four hours a day on Case-2.
According to A-1, appellant admitted that he had forgotten about the case.
With regard to Case-3, appellant maintained that, after doing the work
that resulted in a settlement, the case was reassigned to another agent.
According to appellant, he did not receive any credit for his work.
A-1 disputed appellant's contention that he did the work that resulted in
a settlement of the case. According to A-1, appellant merely prepared
a spreadsheet that took, at most, "a couple of days." The efforts that
appellant did make, A-1 attributed to her giving him a direct order to
accomplish specific tasks. Finally, with regard to Cases-4, 5, and 6,
appellant maintained that A-1 gave him an order to do a great deal of work
on these cases in a short period of time. A-1, however, testified that
there was not a great deal of work required of appellant and that she had
previously told him, by memorandum, that he should be working on them.
After a careful review of the record, we find that appellant presented
no persuasive evidence that his prior EEO activity played any role in
this matter. Therefore, we AFFIRM the agency FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
September 23, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Initially, appellant's complaint included the basis of race (White),
but it was subsequently withdrawn.
2A rating of "1" indicates that the standard was "Partially Met," a
rating of "2" indicates that the standard was "Fully Met," a rating of
"3" indicates that the standard was "Exceeded," and a rating of "4"
indicates that the standard was "Substantially Exceeded."
3ROI Exhibit 5, pages 1-9.
4ROI Exhibit 6, pages 1-3.