01997133
12-20-2000
Emogene H. Sharp, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Emogene H. Sharp v. Department of Treasury
01997133
December 20, 2000
.
Emogene H. Sharp,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01997133
Agency No. 97-1169
Hearing No. 120-98-9058X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the basis of reprisal (prior EEO
activity) when she received a �Fully Successful� rating on her performance
appraisal for the period from October 1, 1995 to September 30, 1996.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Supervisory IRS Agent at the
agency's Southeast Key District, Atlanta, Georgia facility, filed a formal
EEO complaint with the agency on March 12, 1997, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of reprisal discrimination. Specifically, the AJ found that complainant
failed to demonstrate that there was a causal nexus between her prior EEO
activity and her fully successful performance rating. In that regard,
the AJ noted that both her first and second line supervisors, who issued
and approved the performance appraisal were aware of complainant's prior
EEO activity. However, only the second line supervisor was involved in
complainant's prior EEO activity, and only then acted as the individual
who approved the settlement of complainant's prior EEO complaint.
Neither of complainant's supervisors had any other involvement in
complainant's prior EEO complaint.
Furthermore, the AJ found complainant failed to establish that other
similarly situated individuals were treated more favorably than she was
under similar circumstances. The AJ noted that all the individuals who
received higher ratings than complainant's performed duties that were
beyond those duties established within their work groups. For instance,
the AJ found complainant's comparatives worked on special task forces,
special emphasis programs, or have been involved in cases that were
beyond their normal jurisdiction and responsibilities. In that regard,
the AJ found complainant failed to profer any evidence that she had
similar accomplishments.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that an agency
directive on performance appraisals stated that �when objectives are
achieved, a fully successful rating is expected. Higher ratings
should occur only when business objectives are exceeded and when
overall performance is very high.� (Administrative File at p. 29).
Although the record established complainant met her business objectives,
it did not indicate that she demonstrated a high level of performance.
When considering the rating, complainant's second level supervisor averred
that he reviewed not only program objectives, but also additional work
and achievements which affected not only complainant's work group,
but also other work groups as well.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that complainant
failed to show that the agency's reasons for not rating her higher than
�fully successful� lacked credence.
On August 19, 1999, the agency's final decision adopted the AJ's
recommended decision.
On appeal, complainant contends that the AJ erred when she found there
were no material facts in dispute. She contends that she was not required
to perform the additional duties cited by her supervisors as that which
served as the basis for the higher ratings.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedures
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when "material facts are not in genuine dispute."
29 C.F.R. �� 1614.109(g). Only a dispute over facts that are truly
material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgment). For example, when a complainant is unable to set
forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element
of the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986). EEOC Management Directive 110 (MD-110),
at 7-15 (November 9, 1999). The Commission will apply a de novo standard
of review when it reviews an AJ's decision to issue a decision without a
hearing pursuant to 29 C.F.R. �� 1614.109(g). See EEOC MD-110, at 9-16.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were
in retaliation for complainant's prior EEO activity. We discern no
basis to disturb the AJ's decision. Other than her own assertions,
complainant failed to present evidence that would establish a dispute as
to a material fact. 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 agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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
December 20, 2000
__________________
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.