01986175
03-15-2000
Patricia I. Carter, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Patricia I. Carter v. Department of the Navy
01986175
March 15, 2000
Patricia I. Carter, )
Complainant, )
) Appeal No. 01986175
v. ) Agency No. 95-68931-003
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female), reprisal (prior EEO activity), age (DOB: January
22, 1941), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether the agency properly determined that
complainant failed to establish that she was discriminated against based
on her sex, age, and prior EEO activity when she was given a rating of
"Exceeds Fully Successful" and when management failed to change her
rating to "Outstanding."
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Contract Surveillance Representative, at the Navy's Public Works
Center, in Mayport Zone, Jacksonville, Florida. Complainant alleged that
management discriminated against her when her supervisor (Supervisor) gave
her a lower performance rating for the 1994 rating period from October 1,
1993 through September 15, 1994, than the previous year. She contended
that she was under the impression that her rating would remain the same
from the previous year, i.e., an "Outstanding" rating, rather than the
"Exceeds Fully Successful" she received. Complainant further alleged that
on October 14, 1994, the zone manager at the time (Manager-1) reviewed
her evaluation in an untimely manner and failed to raise her rating.
Instead, Manager-1 determined that there was no evidence of reprisal and
that her rating of "Exceeds Fully Successful" was a very good evaluation.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on February 21, 1995.
At the conclusion of the investigation, complainant requested a hearing
before an Administrative Judge through her representative. However,
her representative withdrew that request and instead requested that the
agency issue a FAD without a hearing.
The FAD concluded that complainant failed to establish that she was
discriminated against on the bases of age, sex, and reprisal. Further,
the FAD found that management articulated legitimate, nondiscriminatory
reasons which complainant failed to show were pretext for discrimination.
On appeal, complainant contends that the agency failed to adopt the
investigator's conclusion that the agency failed to state legitimate,
nondiscriminatory reasons for its actions. Further, complainant
alleges that the agency failed to consider her claim of hostile work
environment.<2> The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Generally, discrimination claims are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F. 2d 1003 (1st
Cir. 1979). Complainant 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 Constr. Corp. v. Waters, 438 U.S. 567
(1978). Next, the agency offers rebuttal to complainant's inference of
discrimination by articulating a legitimate, nondiscriminatory reason
for its action(s). See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has
met its burden, the complainant bears the ultimate burden to persuade the
fact finder by a preponderance of the evidence that the reasons offered
by the agency were not the true reasons for its actions but rather
were a pretext for discrimination. St. Mary's Honor Cent. v. Hicks,
509 U.S. 502 (1993). Under the ADEA, the complainant must show that
her age was a determining factor in the agency's removal action, that
is, considerations of age made a difference in the agency's action.
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (age had "a role
in the process and a determinative influence on the outcome").
Although the initial inquiry in a discrimination case 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).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he or she has demonstrated
by preponderance of the evidence that the agency's reasons for its
actions merely were a pretext for discrimination. Id. See also Aikens,
Upon review of the record, the Commission finds, contrary to the
investigator, that the agency articulated legitimate, nondiscriminatory
reasons. As to complainant's claim that she was discriminated against
when she was rated "Exceeds Fully Successful," the agency argued that
she was not promised that her rating would remain the same as the
previous year. Specifically, the Supervisor averred that he informed
complainant that management had planned on changing position descriptions
and critical elements for performance evaluations for the rating period
from October 1, 1993 through September 15, 1994. Later, Manager-1
decided that "there will be no changes, everything will remain the
same as last year," intending to mean that the position descriptions
and critical elements would not be changed. Manager-1 averred that
he never intended to promise anyone that they would receive the same
rating that they received the previous year. Further, the Supervisor
averred that during the relevant time period, complainant performed the
tasks of her grade which he considered appropriate of the "Exceeds Fully
Successful" rating. As to complainant's second claim that management
failed to review her rating in a timely manner, the agency argued that
the current Zone manager (Manager-2) received a request to review her
evaluation on September 27, 1994. On October 14, 1994, Manager-2 issued
a memorandum finding that complainant's rating was appropriate and that
there was no evidence of reprisal.
Once the agency has provided legitimate, nondiscriminatory reasons
for its actions, the burden shifts to complainant to prove that the
agency's legitimate reason was a pretext for discrimination. Upon review
of the record, the Commission finds that complainant failed to show
that the agency's articulated reasons were pretext for discrimination.
Accordingly, the Commission finds that complainant has failed to show
through preponderant evidence that she was discriminated against on the
bases of sex, age, and reprisal.
CONCLUSION
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 FAD.
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:
March 15, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ ________________________
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.
2 Complainant is alleging a new claim on appeal which was not raised
with EEO counselor and not investigated. Accordingly, the Commission
will not address this claim.