Jeanne Diedrich, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 24, 2000
01985770 (E.E.O.C. Feb. 24, 2000)

01985770

02-24-2000

Jeanne Diedrich, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Jeanne Diedrich v. Department of the Army

01985770

February 24, 2000

.

Jeanne Diedrich,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01985770

Agency No. BUDEFO9607G0300

Hearing No. 210-97-6204X

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 7/18/41) in violation of the Age Discrimination in

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

and on the basis of reprisal (prior EEO activity) 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 (1) on April 29,

1996, when she was issued her evaluation for the period between July 1,

1994 to June 30, 1995, and her supervisor either asked her to back date

the form or angrily challenged her about using the accurate date; and (2)

when she received ratings of "Success" rather than "Excellence" on two

ratings, "Technical Competence" and "Adaptability and Initiative." 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 civilian employee, Office Automation Clerk, GS326-03,

in the Medical Brigade at Fort Sheridan, Illinois. Supervisor A was

complainant's first-level supervisor and rating official on the agency's

Form 7223, Base System Civilian Evaluation Report. Supervisor A did not

supervise or rate any other employee. Supervisor B was complainant's

second-level supervisor and rating official. The record indicates that

complainant had initiated an EEO claim against Supervisor B prior to the

events giving rise to this appeal. Complainant alleged discrimination

based upon sex in a formal complaint, dated December 15, 1993; the

matter was settled in early 1994. The record reveals that supervisor A

was assigned to complainant in April 1994 as her rater because of this

1994 settlement agreement. Complainant received no performance rating

from Supervisor B for the previous evaluation period ending June 30,

1994. Complainant's April 29, 1996 performance rating should have been

issued within 45 days of June 30, 1995. Complainant's overall rating

(consisting of four elements) was "Successful," which was the highest

attainable rating in her performance plan. She received a rating of

"Excellence" in two of the four elements and a rating of "Success"

in the other two elements, which are the subject of the current appeal.

Complainant asserted that when she asked supervisor A whether or

not to backdate her performance appraisal, supervisor A did not

respond. Complainant further asserted that she then told supervisor

A that she would not put in a fraudulent date. Complainant alleged

that supervisor A immediately became angry and told her that she would

find out what could be done by talking with the Staff Administrative

Assistant, who handled the personnel evaluations. Complainant further

alleged that supervisor A returned and indicated that it would be

fine if all three dates (for the rater, senior rater and ratee) were

consistent. Complainant stated that supervisor A admitted that her

Form 7223 was long overdue. Regarding the Technical Competence rating,

complainant alleged that supervisor A never mentioned minor typographical

and spelling errors as a concern. Complainant stated that she always used

the spell-check and that source documents provided by supervisor A were

disorganized, messy and difficult to read. Complainant further stated that

supervisor A wanted perfect documents; that the environment was hectic

and fast paced; and that supervisor A never inquired (during the rating

period) of others their opinion of complainant's performance. Concerning

both the Technical Competence and Adaptability and Initiative Elements,

complainant maintained that her tireless work in producing a slide

presentation for a Brigadier General, as well as for the 330th Medical

Brigade conference, serves as proof why she should be rated Excellence

in both elements. Complainant received a unit plaque awarded for her

efforts in connection with preparing slides for the Brigadier General's

presentation at the 330th Medical Brigade conference in June, 1985.

Supervisor A testified that complainant's Form 7223 was not issued in a

timely manner because complainant did not have a rating for the previous

rating period. Supervisor A stated that when she presented complainant

her Form 7223, she did not ask her to backdate it, but that she was

concerned that the proper date format be used, i.e., 29 April 96 versus

96-04-29. She indicated that she did not want an administrative error

which could stop processing of complainant's evaluation. She stated that

she did not recall how long supervisor B had complainant's evaluation

before he signed it, but knew that it was overdue before giving it to

him for his input. Regarding the Technical Competence element, supervisor

A testified that complainant needed improvement

in correspondence formatting, spelling and proofreading. She indicated

that corrections/deletions were usually noted in colored ink. While

acknowledging that complainant had certainly demonstrated a command

of various computer programs and had done an outstanding job with the

slide presentations, supervisor A asserted that this performance was

one portion of the element which she considered in conjunction with

complainant's need for correspondence improvements.

Also, supervisor A maintained that she never purposely provided

source material to make anything more difficult for complainant to

read or understand. Concerning the Adaptability and Initiative element,

supervisor A testified that complainant was always very pleasant and was

willing to try new ways and suggest better ways to do business. However,

she stated that she did not rate complainant at the Excellence level

because she did not see the push from her to meet that level.

Supervisor B testified that he did not recall when he was first given

complainant's Form 7223 to review as a senior rater, or how long he had

it before he reviewed, signed and gave it back to supervisor A. Factors

which he stated contributed to the delay in complainant receiving her

performance evaluation were: command expansion and personnel movement,

with a significant increase in personnel to support without an increase

in resources.

The record reveals that three other employees, who were also rated

by supervisor B, received their performance evaluations many months

late. There is no record of EEO activity for any of these three

employees. Complainant, supervisor A and B all placed the same date,

April 29, 1996, on complainant's performance rating. This was the actual

date of receipt by complainant.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint(s) on August 16,

1996. By letter dated October 26, 1996, complainant was advised that

her allegation had been accepted for investigation. At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

After reviewing the evidence of record, the AJ issued a recommended

decision (RD), dated September 24, 1997, without a hearing finding no

discrimination. The AJ concluded that complainant failed to establish a

prima facie case of age discrimination because she failed to demonstrate

that similarly situated employees not in her protected class were

treated differently under similar circumstances. The AJ also found

that complainant failed to establish a prima facie case of reprisal

discrimination because complainant did not demonstrate that supervisor

A was aware of her EEO activity prior to the rating. Further, the

AJ found that there was no evidence that supervisor B influenced or

altered supervisor A's rating of complainant, and that there was no

nexus between complainant's prior EEO activity and the Success rating

in the two elements. The AJ then concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions, namely, that

supervisor A stated that, while complainant's work was excellent in many

respects, there were deficiencies in typed materials. The AJ also found

that complainant's evidence did not establish that more likely than

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

discrimination. Furthermore, the AJ found that other employees, including

one (DOB 9-23-60) considerably younger than complainant, also received

very late evaluations from supervisor B. Because the agency failed to

timely issue its FAD, the AJ's RD became the agency's final decision.

On appeal, complainant essentially contends that her rating of Success

in two of the elements could ultimately determine her employment status

in the event of a reduction of force by the agency. The agency requests

that we affirm its final decision.

ANALYSIS

ADEA

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). However, unlike in a Title VII case, complainant to ultimately

prevail must demonstrate that age was a determinative factor, and not

simply a factor, in the adverse employment action. Bell v. Department

of Veterans Affairs, EEOC Request No. 05950863 (Sept. 17, 1997)(citing

Loeb v. Textron, Inc., 660 F. 2d 1003 (1st Cir. 1979)).

In this case, we find that complainant has failed to establish a prima

facie case of age discrimination. While complainant is within the

ADEA's protected group, complainant has failed to present evidence that

similarly situated individuals not in her protected class were treated

differently under similar circumstances. One employee, considerably

younger than complainant, also received a very late evaluation from

supervisor B. Moreover, complainant has failed to show that age was a

determinative factor in the sense that "but for" age, complainant would

not have been subjected to the action at issue.

REPRISAL

In a reprisal claim, complainant may establish a prima facie case

of reprisal by showing that: (1) she engaged in protected activity;

(2) the agency was aware of her protected activity; (3) subsequently,

she was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse action. McDonnell

Douglas; Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997).

Here, the record clearly shows that complainant engaged in prior EEO

activity, beginning in December 1993 through culmination of a settlement

agreement some time in early 1994; that an agency official, particularly

supervisor B, was obviously aware of her prior EEO activity; and that

complainant was subjected to adverse treatment by the agency when she

received ratings of Success rather than Excellence on two ratings,

Technical Competence and Adaptability and Initiative. However, we find

that complainant has failed to show a nexus between her prior EEO activity

in 1993/1994 and the current incident which occurred in April 1996. We

note that a nexus or causal relationship between her prior protected EEO

activity and the later agency action may be shown by evidence that the

adverse action followed the protected activity within such a period of

time and in such a manner that a reprisal motive can he inferred. Grant

v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980). Generally, the

Commission has held that such a nexus may be established if the protected

EEO activity and the later adverse events occurred within one year of

each other. Patton v. Department of the Navy, EEOC Request No. 05950124

(June 26, 1996). In the instant case, the time elapsed between the

prior protected EEO activity and the later incident which occurred

in April 1996 is at least two years. Hence, without other evidence,

complainant fails to show the required causal connection between the

agency actions, irrespective of whether supervisor A was aware of her

prior EEO activity, and therefore cannot establish a prima facie case

of reprisal discrimination.

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

AJ's RD 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 or were motivated by discriminatory

animus toward complainant's age group. We discern no basis to disturb

the AJ's RD. 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 (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

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 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.