01972339
01-15-1999
Louise L. White, Appellant, v. William S. Cohen, Secretary, Department of Defense, Defense Logistics Agency, Agency.
Louise L. White v. Department of Defense
01972339
January 15, 1999
Louise L. White, )
Appellant, )
) Appeal No. 01972339
v. ) Agency No. GA-95-016
) Hearing No. 120-96-5559X
William S. Cohen, )
Secretary, )
Department of Defense, )
Defense Logistics Agency, )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (African-American)
and reprisal for prior protected activity, in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges she was discriminated against when she was not given
a performance award for the rating period ending April 15, 1995.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was
employed as a Supervisory Management Analyst and Chief of the Program
Branch, GS-343-13, of the Office of Planning and Resource Management
(OPRM) at the agency's Defense Supply Center, in Richmond, Virginia.
Appellant alleges that while she was awarded a �Highly Successful'
performance appraisal for the August 1, 1994, through April 15, 1995,
rating period, she was not nominated for a Sustained Superior Performance
Award (SSPA). Appellant had filed formal EEO complaints in January and
April, 1995 regarding discrimination and harassment, and her supervisor
and the Director of OPRM were aware of her previous complaints when she
was not nominated for a SSPA in April, 1995.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on August 4,
1995. At the conclusion of the investigation, appellant was provided
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Pursuant to 29 C.F.R. �1614.109(e),
the AJ issued a Recommended Decision (RD) without a hearing finding
no discrimination.
The AJ initially concluded that appellant failed to establish a prima
facie case of race discrimination when she was not nominated for a
performance award in April, 1995, because she did not demonstrate that
she was treated differently than similarly situated persons outside
her protected class. The AJ found that similarly situated employees
who also received �Highly Successful' performance ratings were not
nominated for SSPAs, while the only employees who received SSPAs were
awarded �Exceptional' performance ratings and were thus not similarly
situated to appellant.
The AJ then found that appellant established a prima facie case of
reprisal, but the agency articulated legitimate, nondiscriminatory reasons
for failing to nominate her for a SSPA, namely, the Director of OPRM
stated that appellant's job performance did not merit an �Exceptional'
rating, and budgetary limits prevented him from nominating employees who
received only �Highly Successful' ratings for a SSPA. The AJ further
found that appellant failed to establish that the agency's reasons
for not nominating appellant for a SSPA were a pretext for unlawful
discrimination.
The agency's FAD adopted the findings of the AJ. Neither appellant nor
the agency made any new arguments on appeal. The agency stands on the
record and requests that the Commission affirm its FAD.
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 agree with the AJ that appellant
failed to establish a prima facie case of race discrimination, as she did
not demonstrate that in failing to receive a performance award in April,
1995, she was treated differently from similarly situated employees.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We further
agree that while appellant established a prima facie case of reprisal,
the agency demonstrated that its actions were taken for a legitimate,
nondiscriminatory reason and appellant failed to meet her burden of
showing that the agency's reasons are a pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990). We thus discern no basis to disturb the AJ's findings
of no discrimination. Therefore, after a careful review of the record,
including appellant's arguments on appeal, the agency's response, and
arguments and evidence not specifically discussed in this decision,
the Commission AFFIRMS the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the 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 the
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 15, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations