01983374
07-24-2001
Isabel M. Devine, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Isabel M. Devine v. Department of the Navy
01983374
July 24, 2001
.
Isabel M. Devine,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01983374
Agency No. 9662795003
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleged that she was discriminated against
on the basis of sex (female) when she was rated less than �Outstanding�
and did not receive a performance award for the rating period ending
July 31, 1995.
The record reveals that during the relevant time, complainant was employed
as a General Engineer at the agency's Pascagoula, Mississippi facility.
On or about August 28, 1995, complainant was given an annual performance
appraisal rating of level four, �exceeds fully successful�, by her
acting supervisor (S1). Complainant was not satisfied with the level
four rating as she believed she had earned a rating of �Outstanding�,
level five, and therefore refused to sign the evaluation. Employees who
received ratings of level four and five, and who are recommended by
their supervisor, were referred to an awards board which determined
which employees would receive performance awards. The board consisted
of nine male division heads within the Engineering department. While it
is unclear whether S1 recommended complainant to the board, complainant
was not one of the employees chosen to receive a performance award.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on January 17, 1996.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant received the performance
evaluation rating to which she was entitled. The agency states that
complainant's supervisors felt she did her job well and that the �above
fully successful� rating was appropriate as she did not put in the extra
effort that would have earned her a rating of �outstanding.� Further,
the agency asserts that an employee who receives a performance award is
generally one who �shows initiative, goes above and beyond the call of
duty, may have done a special program or project, who accepts work that
may even be outside their PD because we have an urgent need for something
and they jump in and lend a hand.� (Fact finding conference transcript,
page 109). The agency states that though complainant is a good employee,
she failed to display the necessary characteristics to earn her a level
five rating in that she had refused two assignments, spent time playing
computer games, reading magazines, and visiting with other employees,
and was therefore not entitled to a performance award.
On appeal, complainant contends that she did outstanding work and was
entitled to an �outstanding� performance evaluation. Complainant asserts
that as S1 had been her supervisor for only two weeks at the time the
performance evaluation was issued he was not in a position to make an
accurate assessment of her job performance. Complainant denies the
agency's assertion that she lacks initiative, and complainant maintains
that she did her job well, gave excellent customer service, and was
therefore entitled to receive a performance award. Complainant further
states that she was the only female engineer and that her work was as
good, if not better, than the male engineers who received level five
ratings and performance awards. In response, the agency states that
the male engineers cited by complainant were not supervised by the
same management official and were therefore not similarly situated.
The agency also reiterates its argument that level four was the proper
appraisal rating for complainant and as she did not show the initiative
necessary, she was not entitled to a performance award. The agency
requests that we affirm its FAD.
Complainant has alleged a claim of disparate treatment on the basis
of sex. A claim of disparate treatment is examined under the three-part
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
For complainant to prevail, she must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567(1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 , 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711 , 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990).
Here, we find that the agency has articulated a legitimate,
non-discriminatory reason for giving complainant a rating of �above
fully successful� and denying her a performance award. Namely, that
complainant did her work well, but only did what was expected of her
and nothing more. The Commission further finds that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that of the ten engineers outside complainant's
protected class who received the same rating as complainant, four were
also denied performance awards. Further, while complainant's previous
supervisor (S2) retired shortly prior to the completion of her appraisal
and S1 had been complainant's supervisor for only two weeks, S1 states
that he relied upon the evaluation that S2 had made of complainant prior
to S2's retirement. Therefore, though S1 had only a short time in which
to observe complainant's work, her level four rating was based upon the
assessment of S2 who had been complainant's supervisor for the majority
of the evaluation period. Complainant has failed to adduce any persuasive
evidence which could support the conclusion that the agency's explanation
for its actions is a pretext designed to conceal discriminatory intent.
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 FAD.
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
July 24, 2001
__________________
Date