01982203
12-19-2000
Juanita E. Tate, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Juanita E. Tate v. Air Force
01982203
December 19, 2000
.
Juanita E. Tate,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01982203
Agency No. AL900980291
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.<2> Complainant alleged that she was
discriminated against based on disability (hearing), when she received
a rating of Fully Successful for the rating period ending June 30, 1996.
The record reveals that during the relevant time, complainant was employed
as a Transportation Clerk Typist, GS-2102-04, in Freight Operations,
436th Aerial Port Squadron, at the agency's Dover Air Force Base,
Dover, DE, facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on November 8, 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. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614, the agency issued a final decision on
December 15, 1997.
In its FAD, the agency concluded that complainant was a qualified
individual with a disability within the meaning of the Rehabilitation Act,
acknowledging that she has a hearing impairment which substantially limits
her ability to hear. The agency, however, found that complainant did
not establish a prima facie case of discrimination. It thus concluded
that complainant established no causal relationship between her hearing
impairment and the appraisal rating at issue in the complaint. The agency
also found that complainant failed to provide sufficient evidence to raise
an inference of discrimination, emphasizing that complainant failed to
show a similarly-situated comparator. In any event, the agency found that
management had articulated a legitimate, nondiscriminatory explanation
for the appraisal rating at issue in the complaint, i.e., that complainant
received her performance rating based on her actual work.
While complainant filed an appeal, she did not submit a supporting brief.
The agency did not file a response.
To establish a prima facie case of disability discrimination under a
disparate treatment theory, the complainant must demonstrate: (1) she is
an �individual with a disability� as defined in 29 C.F.R. � 1630.2(g);
(2) she is a �qualified individual with a disability� as defined in 29
C.F.R. � 1630.2(m); and (3) she was subjected to an adverse personnel
action under circumstances giving rise to an inference of disability
discrimination. See Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981). An �individual with a disability� is defined as someone
who: (1) has a physical or mental impairment which substantially limits
one or more of such person's major life activities; (2) has a record
of such an impairment; or (3) is regarded as having such an impairment.
29 C.F.R. � 1630.2(g)(1)-(3). �Major life activities� include functions
such as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. 29 C.F.R. �
1630.2(i). It is undisputed that complainant is a qualified individual
with a disability. After complainant has established a prima facie case,
the agency must articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). If the agency is successful, then the complainant must prove,
by a preponderance of the evidence, that the legitimate reason proferred
by the agency was a pretext for discrimination. Id. at 256.
Although the initial inquiry of discrimination usually focuses on whether
the complainant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Even assuming,
arguendo, that complainant could prove that she was a qualified
individual with a disability within the meaning of the Rehabilitation
Act and establish a prima facie case, as discussed more fully below,
we find that she, nevertheless, has failed to prove discrimination.
We find that the agency
articulated a legitimate, nondiscriminatory reason for denying complainant
reinstatement, i.e., that her appraisal rating was based on her actual
work performance.
It is thus the complainant's burden to establish by a preponderance of
the evidence (more likely than not), that the agency's articulated
nondiscriminatory explanation for its action was a pretext for
discrimination. In the Commission's view, complainant has failed to
meet her burden to show that the agency's articulated nondiscriminatory
explanation was pretext. Her first-line supervisor (military) rated four
clerk typists, GS-2102-04, including complainant, who is the only person
with a disability. Her first-line supervisor rated three of the typists,
including complainant, as fully successful. Clerk typist A was rated as
excellent, because in the supervisor's view, she showed more initiative
than the other clerk typists, was the only one who undertook to train
a new employee, and consistently sought out new work upon completing
tasks. The performance reviewer (civilian), her second-line supervisor,
concurred with the first-line supervisor's evaluations.
The complainant attempts to show pretext by pointing out, that her
appraisal factor ratings were all above the fully successful range.
The appraisal factors are: (1) work effort, (2) adaptability to work,
(3) problem solving, (4) working relationships, (5) communication,
(6) work productivity, (7) self-sufficiency, (8) skill in work, and (9)
work management. Complainant received �Far Above Fully Successful� on
all of the appraisal factors, except one, in which she received �Above
Fully Successful.�
The FAD indicates, however, that the appraisal factor ratings are not
directly related to overall performance ratings, and that the overall
rating is a function of whether the employee meets or exceeds the
standards for the various performance elements. In complainant's case,
three standards were deemed critical and one standard deemed non-critical.
Complainant was rated �Exceeded� (the highest rating) on one critical
standard and the non-critical standard, but was rated �Met� on the other
two critical standards. The complainant's fully successful rating was
determined by the fact that she had not �Exceeded� more than half of
the critical performance elements.
At first glance, the agency's explanation does not appear to be entirely
persuasive. The performance elements relate to what the employee does in
terms of job duties and how well the work is done in terms of accuracy
and timeliness. The appraisal factors, involving problem solving, work
productivity, and skill in work would seem to directly relate to the
performance elements. We also note, that the appraisal factors are
delineated for consideration in the performance elements statement.
However, on review of the other GS-2102-04 employees' appraisals rated
by the same individuals who rated complainant for the same rating
period, we are not persuaded that complainant was discriminated against
because of her disability. Typist A (no disability) received four
ratings of �Outstanding� and five of �Far Above Fully Successful� and
received four �Exceeded� ratings (three critical, one non-critical)
and one �Met� (critical).<3> Typist B (no disability) received seven
ratings of �Far Above Fully Successful�, one �Above Fully Successful�,
one �Slightly Above Fully Successful� and received one �Exceeded�
rating (critical) and four �Met� (two critical and two non-critical).
Typist C (no disability) received one �Outstanding�, one �Far Above Fully
Successful�, and seven �Above Fully Successful� and received all �Met�
(four critical and one non-critical).<4> Thus, there does not appear
to be a significant correlation between the appraisal factors' ratings
and the ultimate performance ratings. Indeed, complainant's first-line
supervisor emphasized that in order to get an �Exceeds� complainant would
have had to show more initiative, suggesting that while complainant was
doing her job on a day-to-day basis, she did not do anything above and
beyond her responsibilities. In contrast, as previously indicated, Typist
A was the only one who undertook to train a new employee and consistently
sought out new work upon completing tasks. The agency's explanation seems
to suggest that the appraisal factors' ratings assess how the employee
is doing the job, but does not factor in any failure to go above and
beyond doing the job. On the other hand, going above and beyond doing
the job could factor in positively in the appraisal factors' ratings.
The agency's explanation appears to have been applied on a
non-discriminatory basis in this case. Typists B and C had virtually
all of their appraisal factors rated at �Above Fully Successful� or
above, but yet they received the same overall �Met� performance rating
as complainant. Complainant actually had more �Exceeds� on individual
performance elements than Typists B and C. Typist A had clearly superior
appraisal factors' ratings and was especially commended by her supervisor
for her initiative above and beyond her responsibilities of the job.
Thus, it would not be unexpected that she would have a higher performance
rating than complainant. We also note that complainant does not otherwise
suggest any animus towards her on the basis of her disability.
Therefore, after a careful review of the record, including complainant's
appeal, 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
December 19, 2000
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 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.
3 Typist A ended up receiving a superior rating, after she appealed her
initial rating.
4 The record does not explain why complainant had four performance
standards, while the other comparator employees had five performance
standards.