Elodia Castro, Complainant,v.Aida Alvarez, Administrator, Small Business Administrator, Agency.

Equal Employment Opportunity CommissionFeb 24, 2000
01980948 (E.E.O.C. Feb. 24, 2000)

01980948

02-24-2000

Elodia Castro, Complainant, v. Aida Alvarez, Administrator, Small Business Administrator, Agency.


Elodia Castro v. Small Business Administration

01980948

February 24, 2000

.

Elodia Castro,

Complainant,

v.

Aida Alvarez,

Administrator,

Small Business Administrator,

Agency.

Appeal No. 01980948

Agency No. 03-95-476

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

basis of age (DOB 5/5/49) in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,

and on the bases of sex (female) and national origin (Mexican-American)

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> Complainant alleges she was discriminated

against in October 1994, when she received an unfavorable PMAS review

for Fiscal Year 1994 based on purportedly erroneous information given

to the Branch Manager of the Fresno Service Center by two individuals

in the Legal Division. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the Commission AFFIRMS

the agency's decision.

The record reveals that during the relevant time, complainant was employed

as a Loan Specialist, GS-12, at the agency's Commercial Loan Servicing

Center in Fresno, California. Complainant's first-line supervisor and

rating official during her performance appraisal period was supervisor

A. Her second-line supervisor and reviewing official during this appraisal

period was supervisor B (Director of Fresno Servicing Center). On October

11, 1994, supervisor A recommended complainant for a Sustained Superior

Performance Award relating to her work performance during fiscal year

1994. This recommendation was based on complainant's work as the only

Loan Specialist on a special team which coordinated the transfer of loans

from four new district offices. This team also serviced all requests

from lenders and borrowers located in these four new offices.

Complainant alleged that supervisor B discriminated against her when he

lowered her PMAS ratings on two critical elements from "exceeds fully

successful" to "fully successful." Complainant stated that supervisor

A recommended exceeds fully successful on all five elements in her

performance appraisal. According to her, supervisor B returned the

recommended rating to supervisor A and "ordered" supervisor A to

change the rating on two elements to fully successful. Complainant

asserted that supervisor B changed her ratings because he received

feedback from two staff attorneys, Attorney 1 and Attorney 2, in the

Legal Division, alleging that about 80-90% of her work had to be sent

back to her because of errors. Complainant stated that neither she,

nor supervisor A, ever received any kind of indication that her work

was in need of correction throughout FY 1994. Furthermore, complainant

stated that neither supervisor B nor the two staff attorneys provided

any tangible proof to support supervisor B's decision. Complainant also

stated that what strongly influenced supervisor B's decision to lower her

ratings was what she noted as her non-membership in the organization's

"in-group." In fact, complainant asserted that supervisor B really is

primarily concerned with promoting another Loan Specialist, a white male

(DOB 12-13-38), and that she was singled-out in the rating process

in order to allow exclusive promotional opportunity for this white

male. Complainant further asserted that supervisor B recently canceled

two vacancy announcements for which she and this other Specialist were

the only "viable candidates." Complainant stated that she has always

received exceeds fully successful and has received numerous awards for

her accomplishments. Even though her overall rating remained at the

exceeds fully successful level, complainant asserted that supervisor B

intentionally lowered the ratings on her two elements with the intent

of damaging her reputation and destroying her superior standing within

the organization.

Supervisor A stated that complainant is a well trained Loan Specialist

and very competent in her line of work. According to supervisor A,

he rated complainant exceeds fully successful in all of her PMAS

elements. He stated that complainant had been doing exceptional work -

considering that she was the only Loan Specialist on his team, and did

not have a Loan Servicing Assistant to help her out. Supervisor A also

noted that he was not aware, nor had anyone brought to his attention

that complainant's work was so allegedly poor.

Supervisor B stated that sometime in 1994, Attorney 1 informed him of

problems with the actions being submitted to the Legal Division for review

by the Loan Specialists, and that the number of actions (containing

errors and incompletions) returned was alarmingly high. Supervisor

B noted that he asked Attorney 1 and Attorney 2 to provide him with

feedback identifying the Loan Specialists with the highest number of

returned actions. He stated that, according to Attorney 1 and Attorney

2, the highest number of returned actions belonged to complainant, and

that 80-90% of the actions returned to complainant were returned with a

problem that needed to be addressed. Supervisor B asserted that he did

not believe that complainant deserved exceeds fully successful since

the standards were not met. This, he maintained, is why he directed

supervisor A to check it out and make the appropriate adjustments to

complainant's ratings. Supervisor B stated that he treated all of the

Loan Specialists the same, and that others were also getting actions

returned to them from the Legal Division. While noting that complainant

was processing a considerable number of applications and did not have

the help that some other Specialists may have had, he stated that the

big difference between complainant and the other Specialists was that

the other Specialists did not get exceeds fully successful on all of

the elements. Supervisor B maintained that he did not believe that the

staff attorneys kept any records of the returned actions to complainant,

and that he did not feel that it was necessary. Finally, he stated that

he was not trying to destroy complainant's reputation, and that he is

fully aware that complainant was and still is "a high performer."

Attorney 1 stated that the Legal Division's practice during complainant's

appraisal period was to discuss any errors found, determine missing

documents or seek clarification directly with the Loan Specialists. He

further stated that, at some point later, they were instructed to report

such issues directly to the first-line supervisor. He stated the policy

was again modified to require the Legal Division staff to report these

issues with Loan Specialists directly to the Branch Chief. Attorney 1

asserted that the information he provided was part of an overview of

the Finance Group's performance and that he did not have specific input

in complainant's 1994 PMAS. However, he stated that he recalled that

complainant had a high number of actions that he had to return based on

his personal review. He further stated that he did not recall what her

percentage of errors was and did not maintain a log of who was making the

most errors. Attorney 1 asserted that he remembered "personally returning"

some of complainant's actions to supervisor A, and that he instructed

other attorneys, including Attorney 2, to follow the same procedure.

Attorney 2 stated that she reviewed 327 actions submitted by complainant

and actions submitted by other Loan Specialists for legal adequacy. She

further stated that she also had numerous discussions with complainant

regarding instances where she found errors, missing documents or

needed clarification on a particular action. In complainant's case,

Attorney 2 stated that she had to return or talk to her on 80-90%

of her actions. Attorney 2 further stated that this did not mean that

80-90% of complainant's actions were wrong; it just meant that she needed

clarification. Attorney 2 asserted that she did not keep a written record

of who made errors and of how many errors were made.

Believing she was a victim of discrimination, complainant sought

EEO counseling and, subsequently, filed a complaint on March 28,

1995. By letter dated February 28, 1996, complainant was advised that

her allegation had been accepted for investigation. After the completion

of the investigation, the agency issued its FAD on October 15, 1997.

The FAD concluded that complainant failed to establish a prima facie

case of age, national origin or sex discrimination because she presented

no evidence that similarly situated individuals not in her protected

classes were treated differently under similar circumstances. The

agency found that according to the investigative record, none of the

other Loan Specialists, rated and reviewed by supervisor A and other

supervisors, received higher overall performance appraisal ratings than

complainant. Additionally, the agency found that none of the other Loan

Specialists received exceeds fully successful on all of their critical

elements like complainant did before supervisor B lowered two of her

critical ratings. The agency noted that only one other, older Loan

Specialist (cited by complainant above) received an overall rating of

exceeds fully successful like complainant. Also, the agency noted that

while this comparator received a higher rating on two of his critical

elements, complainant received a higher rating than him on one of her

critical elements. The FAD then concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions, namely, that two of

complainant's critical elements were lowered during the appraisal process

based on the information and feedback received from Legal Division staff

regarding their review of her actions submitted. Further, the agency

asserted that changes in complainant's two elements did not reduce her

overall performance rating below exceeds fully successful. Finally,

the FAD found that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination.

On appeal, complainant contends that the agency failed to consider a

number of her arguments. Complainant contends that she was the only Loan

Specialist on supervisor A's team and that all the other Loan Specialists

were supervised and rated by another supervisor(supervisor C) during the

rating period in question. She further asserts that consideration/credit

was not fairly given for the high volume of work she managed to do

without assistance, unlike the other Loan Specialists.

ANALYSIS

Complainant can establish a prima facie case of sex or national origin

discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination. Shapiro v. Social Security

Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell

Douglas, 411 U.S. at 802). In general, to establish a prima facie

case of discrimination based on a Title VII disparate treatment claim,

complainant must show that she belongs to a statutorily protected class

and that she was accorded treatment different from that accorded persons

otherwise similarly situated who are not members of the class. Comer

v. Federal Deposit Insurance Corporation, Request No. 05940649 (May 31,

1996)(citing Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,

865 (6th Cir. 1975)). In an ADEA case, complainant may establish a prima

facie case by showing that she is in the protected group (over 40),

and was treated less favorably than other similarly situated employees

outside her protected group. See O'Connor v. Consolidated Coin Caterers

Corp., 517 U.S. 878 (1996). In order for two or more employees to be

considered similarly situated for the purpose of creating an inference

of disparate treatment, complainant must show that all of the relevant

aspects of her employment situation are nearly identical to those of the

comparative employees whom she alleges were treated differently. Smith

v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).

Here the record shows that complainant is a member of three protected

groups: female, Mexican-American, over 40 and that she was subjected to

adverse agency action, lowering of two critical elements from exceeds

fully successful to fully successful. However the Commission finds that

complainant has not established that other employees not of her protected

groups were treated differently under similar circumstances. Complainant

cited only one comparison, an older white male. He received an overall

rating of exceeds fully successful like complainant. Also, the agency

noted that while this comparator received a higher rating on two of his

critical elements, complainant received a higher rating than him on one

of her critical elements. Furthermore, the record indicates that none

of the Loan Specialists received higher overall performance appraisal

ratings than complainant. Additionally, the agency found that none of

the Loan Specialists received exceeds fully successful on all of their

critical elements like complainant did before supervisor B lowered two of

her critical ratings. Moreover, complainant concedes on appeal that all of

the other Loan Specialists were supervised and rated by another supervisor

(supervisor C) during the rating period in question. Thus, the Commission

finds that all of the relevant aspects of her employment situation are not

nearly identical to those of the other Loan Specialists. In the absence

of any other evidence from which to infer a discriminatory motive, the

Commission finds that complainant has not established a prima facie case

of age, national origin or sex discrimination.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final decision finding

no discrimination.

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 .; 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 24, 2000

__________________

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.