01A11642
02-26-2003
Olga Y. Perry, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Olga Y. Perry v. Environmental Protection Agency
01A11642
February 26, 2003
.
Olga Y. Perry,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A11642
Agency No. 98-0113-R4
Hearing No. 110-99-8108X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, an Environmental Scientist, GS-12,
who served as a Remedial Project Manager (RPM) at the agency's Atlanta,
Georgia facility, filed a formal EEO complaint on August 13, 1998,
alleging that the agency had discriminated against her on the bases
of race (African-American) and sex (female) when on June 25, 1998,
the agency failed to give her a career ladder promotion to a GS-13.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
In a 1990 memo, the agency had developed general criteria to evaluate
promotions from GS-12 to GS-13, which included, in part, proper site
management, independent performance of all responsibilities with
very little or no supervision, leadership and active planning in site
coordination, diplomacy in difficulty situations, and training/mentoring.
In January 1997, complainant scheduled a meeting with her new supervisor
(S1) to discuss her potential for promotion. S1 informed complainant
that he needed to look at complainant's past performance evaluations and
observe her current performance before he could make a determination.
S1 learned from complainant's former supervisor that complainant lacked
certain technical skills and knowledge. S1 advised complainant that
she needed further improvement to be promoted, and that an Individual
Development Plan (IDP) was needed. S1 advised complainant to take a
more proactive role at her sites; improve her written communications;
and that she would need to receive an Outstanding rating on her upcoming
performance evaluation to be considered for a promotion.
In October 1997, S1 rated complainant as Exceeds Expectations, which
was one level below Outstanding. S1 advised complainant that she still
needed to focus on organizational and written communication skills.
Complainant's second level supervisor (S2) agreed with S1 that complainant
should not be promoted and urged that complainant pursue a more robust,
specific, and measurable IDP and performance history. During the
relevant time, the agency had received three negative calls from
individuals involved with activities at one of complainant's facilities
concerning complainant's performance, i.e., that complainant was unable
to understand or explain comments made by other EPA reviewers, and thus
could not adequately explain her position; that complainant lacked the
ability to explain comments about risk assessment; and that complainant
was apparently unable to assess why a facility's approach was incorrect.
S2 advised S1 to work with complainant to develop an IDP which would more
accurately reflect the level of performance required of a Senior RPM and
which would guide her toward promotion. After several exchanges of the
IDP, it was finalized on July 31, 1998. However, complainant chose to
abandon the IDP process in November 1998.
Complainant testified that at her midyear review on June 25, 1998,
she had requested a promotion which S1 denied.
CONTENTIONS ON APPEAL
Complainant contends that the agency did not want complainant to receive
a GS-13, gave her vague guidance, and changed the promotion criteria.
Also, that the agency did not articulate legitimate, nondiscriminatory
reasons for not promoting complainant. The agency requests that we
affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The AJ found that the agency had articulated legitimate, nondiscriminatory
reasons for its action in not promoting complainant, i.e., that
complainant did not perform at the GS-13 level or have a mastery
of environmental/general science principles needed to successfully
coordinate and oversee her activities; that complainant did not
satisfy the requirements that S1 maintained were mandatory to receive
a promotion; that she did not successfully complete the criteria
required for promotion, or manage her sites in a manner demonstrating
a thorough understanding of the remedial process; and that she did
not work independently. Further, the AJ noted that three individuals
complained about complainant's ability to explain comments; that at
another facility complainant did not finalize a required plan; and that
complainant had improperly delegated duties to a state agency. The AJ
concluded that these matters were legitimate, nondiscriminatory reasons
for the agency's action. These findings concerning work performance
are supported by substantial evidence. Further, the record reflects
that S1's IDP guidance to complainant and the promotion criteria used
by S1 was consistent, and in accordance with agency policy.
Concerning pretext, the AJ found that S1 testified credibly that he rated
complainant properly, that S1 met with complainant many times to discuss
her IDP because he believed that she was capable of becoming a GS-13; and
that S1 had exercised his business judgment in recommending his employees
for promotion by examining the needs of the employee. These findings
are supported by substantial evidence. Complainant failed to show that
the agency's reasons were pretexts to mask unlawful discrimination.
CONCLUSION
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and its progeny, the Commission finds that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We discern no basis to
disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 26, 2003
Date