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.