Hena Bagchi, Appellant,v.James J. Hoecker, Chairman, Federal Energy Regulatory Commission, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01973119 (E.E.O.C. Jan. 29, 1999)

01973119

01-29-1999

Hena Bagchi, Appellant, v. James J. Hoecker, Chairman, Federal Energy Regulatory Commission, Agency.


Hena Bagchi v. Federal Energy Regulatory Commission

01973119

January 29, 1999

Hena Bagchi, )

Appellant, )

)

v. ) Appeal No. 01973119

) Agency No. EO95-008

James J. Hoecker, )

Chairman, )

Federal Energy Regulatory )

Commission, )

Agency. )

______________________________)

DECISION

Appellant timely filed an appeal to the Equal Employment Opportunity

Commission from the final decision of the agency concerning her complaint

of discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq., and the Age Discrimination

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

The appeal is accepted by the Commission in accordance with the

provisions of EEOC Order No. 960.001.

In a complaint dated May 5, 1994, appellant alleged that the agency

discriminated against her on the bases of sex (female), race (Asian),

national origin (Indian), age (over 40), and reprisal (prior EEO

activity), when she received a Supervisory Appraisal of Potential

Performance (SAPP) from the agency for a position she applied for at the

Department of Energy (DOE).<1> The agency conducted an investigation and

provided appellant with a copy of the investigative report. The agency

issued its FAD on February 26, 1997, wherein it found that appellant

had established a prima facie case. However, it also found that it

had articulated legitimate, nondiscriminatory reasons for its action.

Finding that appellant had failed to prove pretext, the agency found

that appellant was not discriminated against, as alleged. It is from

this decision that appellant now appeals.

Appellant testified that she worked for the agency for eleven years

before her resignation in April 1990. Furthermore, she testified that

she resigned from the agency because of difficulties she had experienced

with her supervisors at the time. After receiving an "unacceptable"

rating on her 1989 performance appraisal, appellant and the agency

entered into a settlement agreement whereby in exchange for appellant's

resignation from the agency, the agency changed appellant's performance

appraisal to "fully successful," and removed a three-day suspension from

her personnel file.

On February 15, 1994, appellant applied for a Market Analyst, GS-12

position with the DOE under Vacancy Announcement No. 94-EE-423B.

Although a SAPP was attached to the vacancy announcement, appellant

failed to submit it with her application.<2> She was subsequently

contacted by an individual at the DOE personnel office, who requested

her SAPP. At appellant's request, DOE sent the SAPP to the Office of

Electric Power Regulation (OEPR) at the agency. The Director of the

OEPR received the SAPP and forwarded it to the Supervisory Financial

Analyst, Financial Analysis Branch (Analyst) of OEPR for its completion.

Appellant later learned that the Analyst rated her SAPP with two scores of

"above average," two scores of "satisfactory," and one score of "weak"

in the area of oral and written communication. Appellant subsequently

filed the instant complaint.

Appellant's complaint constitutes a claim of disparate treatment and

is properly analyzed under the three-part test delineated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981); Hochstadt

v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324

(D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976). Although this analysis

was developed in the context of Title VII, it is equally applicable

to claims brought under the ADEA with one important distinction.

Leob v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). In an ADEA case,

appellant is required to demonstrate that age was a determinative factor,

and not simply a factor as in a Title VII case, in the adverse employment

action. Id. at 1019.

Applying this legal standard to appellant's complaint, the Commission

finds that the agency successfully rebutted any initial inference

of discrimination raised by appellant by articulating a legitimate,

nondiscriminatory reason for the action at issue. Specifically, the

Analyst testified that he rated appellant accurately. With respect to

the communication element, the Analyst testified that appellant's oral

communication skills were not effective, and her written work usually

needed to be reworked and revised. He testified that appellant's

answers during testimony were not organized or responsive, and sometimes

unintelligible. Furthermore, he stated that he based this determination

on his observations of her during meetings, staff conferences, and

hearings. Further, he testified that he has known appellant for eleven

years.

Appellant testified that the rating was inaccurate because the Analyst had

previously rated her "Highly Satisfactory" in the area of communication

in 1984. She testified that the SAPP represents reprisal against her

because she filed an earlier EEO complaint against the Analyst in 1993,

after a vacancy she applied for was canceled.<3> Appellant also testified

that the Analyst failed to hire women, that appellant had been the only

Asian in the office, and that she was also the victim of discrimination

because of her age.

In response to appellant's contention that the SAPP was inconsistent

with the 1984 performance appraisal, the Analyst testified that he

signed the 1984 appraisal while in the capacity of Acting Branch Chief,

while the Branch Chief was in the hospital. The Analyst testified that

the appraisal was the Branch Chief's, and he signed it under the Branch

Chief's direction. Furthermore, he noted that since 1984, he had observed

other problems with appellant's performance.

Appellant testified in her affidavit and argues on appeal that she is

continuously blamed for her accent, even though others understand her.

However, after a careful review of the record, we find that the rating

of appellant's communication skills reflected both oral and written

areas, and the rating was not a pretext for intentional discrimination.

We note that appellant's own submissions on appeal detail problems

with her communication skills in both oral and written areas.

Specifically, appellant submitted performance appraisals from 1984

until her resignation, all of which note in some way that she had

some difficulty in her writing. Specifically, the appraisals mention

that she "sometimes needs to be reminded about grammar and syntax",

that she has difficulty in being "clear and concise in her [writing]",

that she "has some difficulty [in writing],... but shows improvement."

Although there is also mention that her oral communication skills were

also a problem, the Analyst testified that "he never spoke to appellant

about her accent," and he "certainly understood the words she [said],

[his] issue was with the content of what she was saying." Furthermore,

he added that it was the "syntax, content and grammar associated with

[appellant's] thoughts" which was hard to understand.

We find that the SAPP rating is supported by the record. Appellant has

failed to provide evidence, documentary or testimonial, indicating

that her communication skills merited a higher rating. Although she

provides some notes from past supervisors and others she has worked

with in her appeal brief, the majority of the notes neither mention her

communication skills in detail, nor do they overwhelmingly commend her

for those skills. Furthermore, the record contains no evidence indicating

that a discriminatory animus prompted this action.

After a careful review of the record, the Commission finds that

appellant failed to establish that the agency's reason for its action

was pretext for discrimination. Accordingly, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the agency's finding

of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if 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:

Jan 29, 1999

___________________ ____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1Appellant's complaint was initially dismissed by the agency for failure

to state a claim. That decision was later reversed and remanded to the

agency in EEOC Appeal No. 01945796. The agency subsequently filed a

Request for Reconsideration, which was denied.

2Appellant testified that her hesitance to supply a SAPP to the DOE

personally stemmed from her background with the agency.

3This allegation was the subject of an earlier complaint, which was

dismissed by the agency for failure to state a claim and for failing to

contact an EEO counselor in a timely manner. On appeal, the Office of

Federal Operations affirmed the agency's final decision in EEOC Appeal

NO. 01934467.