01985752
12-13-2000
Phyllis Winston, Complainant, v. Donna Shalala, Secretary, Department of Health and Human Services, Agency.
Phyllis Winston v. Department of Health and Human Services,
EEOC Appeal No. 01985752
12-13-00
.
Phyllis Winston,
Complainant,
v.
Donna Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01985752
Agency Nos. 081-94 and 213-94
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning her two complaints of employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq.<1> The Commission accepts this appeal.
ISSUES PRESENTED
Whether complainant's first line supervisor, the Chief of the
Freedom-of-Information-Act (FOIA) Staff (hereinafter referred to as RMO1)
discriminated against complainant on the bases of religion (Christian),
race (black), sex (female), and physical disability (difficult pregnancy,
herniated disc), by giving her an annual performance appraisal rating
of �marginally successful� on September 15, 1993.
Whether RMO1 subjected complainant to harassment because of her race,
and retaliated against her for filing an EEO complaint on her performance
evaluation by taking various actions against complainant between November
3 and January 22, 1994, including: suspension of complainant's flex
schedule; restriction of her telephone usage; relocation of her desk;
and other actions.
BACKGROUND
The agency employed complainant as a Freedom-of-Information-Act (FOIA)
officer in the Center for Drug Evaluation Research - Food and Drug
Administration. She filed the two complaints referenced above, in which
she claimed that RMO1 discriminated against her on the bases of religion
(Christian), physical disability (difficult pregnancy, herniated disc),
gender, race (black) and reprisal. In Complaint No 081-94, she claimed
that RMO1 discriminated against her by giving her a performance rating of
minimally successful for the 1993 fiscal year (October 1, 1992 through
September 30, 1993). In Complaint No. 213-94, she claimed that RMO1
discriminated against her and retaliated against her for having filed
Complaint No. 081-94 by subjecting her to harassment between November 3,
1993, and January 22, 1994. As evidence of harassment, she cited the
following incidents:
On November 3, 1993, RMO1 allegedly refused to accept medical
documentation about complainant's need for temporary light duty work.
On November 5, 1993, RMO1 set complainant's working hours to 7:00 AM to
3:30 PM and suspended her maxi-flex-work schedule.
From November 5, 1993 to January 22, 1994, RMO1 charged complainant with
13.25 hours of AWOL.
On November 8, 1993, RMO1 had complainant's desk moved from her work
area, to a location about three feet from RMO1's office.
On November 8, 1993, as a result of her desk being moved, complainant
no longer had a telephone on top of her desk, and thereafter, RMO1
restricted complainant's use of the telephone for personal calls other
than for emergencies.
On November 8, 1993, RMO1 used a racial slur when referring to complainant
in a conversation with another employee.
On November 8, 1993, RMO1 threatened her own secretary with disciplinary
action for speaking to complainant or engaging in conversations with her.
The agency investigated the complaints and notified complainant of her
right to request a hearing before an administrative judge. Complainant
initially requested a hearing, but later withdrew her request.<2> Shortly
thereafter, the agency issued its final decision of no discrimination,
from which appellant now appeals.
ANALYSIS AND FINDINGS
Disability Discrimination
We first address complainant's Rehabilitation Act claim. To bring a
claim of disability discrimination, petitioner must first establish
that she has a disability within the meaning of the Rehabilitation Act.
Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); Sutton
v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2141-42
(1999); Albertsons, Inc., v. Kirkingburg, 527 U.S. 555 119 S.Ct. 2162,
2167-68 (1999). She would be disabled if she has, has a record of, or
is regarded as having a physical impairment that substantially limits
one or more of her major life activities. 29 C.F.R. � 1630.2(g).<3>
The term �substantially limits� means: unable to perform a major life
activity that the average person in the general population can perform. 29
C.F.R. � 1630.2(j)(1).
In support of her claim that she is disabled, complainant submitted
a disability certificate, medical status forms, and doctor's notes
indicating that, between November and December of 1993, she had to
remain in light duty status. Investigative Report, Exhibit (IRE) 8;
Appeal Brief Enclosure (ABE) L. A medical status form dated November 2,
1993, indicated that complainant could return to work for a period of
two weeks in light duty work status, and that light duty included: no
heavy lifting; no bending; no prolonged standing; and frequent breaks,
hourly if needed. IRE 8, p. 4. Complainant notified her supervisor of
the restrictions and requested the supervisor's assistance in obtaining
a light duty assignment. In a response letter dated November 8, 1993,
the supervisor indicated that she needed more information than what was
listed in the medical status form. IRE 8, p. 6. Complainant submitted the
same medical status form in response to the supervisor's request. IRE 8,
pp. 9-10. No further information was received from complainant until
December 1, 1993.
Complainant informed her supervisor that she had to report for surgery at
12:30 pm on December 1st, due to complications from her pregnancy. IRE
8, p. 13, Her physician, a specialist in obstetrics and gynecology,
recommended light duty and no heavy lifting at work after the surgery. IRE
8, p. 15. This physician signed a document entitled, �disability
certificate,� dated December 1, 1993, which stated that complainant
would be totally incapacitated between December 1 and December 8, 1993.
This document also stated that complainant would be recovered sufficiently
to return to light work duties on December 8, and that light duty work
included: no standing, lifting, or pushing heavy objects. IRE 8, p. 16.
From what little information is available, it appears that complainant
had been temporarily incapacitated because of her pregnancy, as none
of the medical documentation in the record substantiates, addresses or
otherwise pertains to her hernia.
Pregnancy itself is not considered to be a disability. Stewart
v. United States Postal Service, EEOC Request No. 05960071 (December
18, 1996). The Commission recognizes a limited circumstance, however,
in which complications from pregnancy can substantially limit a
major life activity, and therefore rise to the level of a disability.
See EEOC Compliance Manual, � 902, pp. 9-10 & n.10 (March 14, 1995).
In this case, although complainant claims that she had a difficult
pregnancy, the record does not contain any medical documentation of any
complications arising from her pregnancy that substantially limit any of
her major life activities.<4> Consequently, we find that complainant is
not an individual with a disability. We therefore turn to her claim of
disparate treatment and harassment on the bases of religion, race, sex,
and reprisal.
Complaint No. 081-94
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., ____U.S.____,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995).
Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 411 U.S. at 804 n.14. While it
would be helpful for complainant to show that she was treated differently
than comparative employees outside of her protected group, the lack
of such a showing would not necessarily be fatal to the establishment
of a prima facie case. O'Connor v. Consolidated Coin Caters Corp., 507
U.S. 308, 312-13 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).
In this case, the record establishes that on September 15, 1993,
complainant received an overall rating of �marginally successful� in her
performance evaluation for fiscal year 1993. IRE 7, p. 23. There is
no evidence in the record as to whether RMO1 gave marginally successful
ratings to individuals outside of complainant's protected groups who
had comparable performance records. We will therefore assume, for the
purposes of this analysis, that complainant has established a prima
facie case of discrimination on all bases claimed.
When asked by the EEO investigator why she gave complainant a marginal
performance rating for fiscal year 1993, RMO1 stated that the rating
reflected a decrease in the point value for the third element of her
performance appraisal, which was entitled: �audits reports from the FOI
tracking system to insure data entered is accurate and reflects the status
of the actions.�<5> RMO1 stated that on several occasions, complainant
responded to FOIA requests that had already been answered, thus
duplicating her efforts, and contributing to her backlog of unanswered
FOIA requests, which had been growing since 1992. RMO1 further stated
that complainant had been duplicating FOIA requests more frequently in
1993. IRE 5, p. 1. We find that the agency has articulated a legitimate
and non-discriminatory reason for giving complainant a marginally
successful appraisal rating in September 1993. Complainant must now show
that this reason is a pretext for discrimination. While disbelief of the
agency's articulated reasons does not compel a finding of discrimination
as a matter of law, disbelief of the reasons put forward by the agency,
together with the elements of the prima facie case, may suffice to show
intentional discrimination. Hicks, 509 U.S. at 511; Huerta v. Department
of the Air Force, EEOC Request No. 05930802 (April 1, 1994).
When asked why she believed that her minimally successful performance
evaluation resulted from religious discrimination, complainant replied
that in January of 1992, she heard a male FOIA technician make comments
about her religious faith, and that, in August of 1992, a female FOIA
technician told complainant that she heard this individual and RMO1 laugh
about how they were, �going to get Jesus out of the office.� IRE 4,
p. 1. RMO1 denied this allegation, and stated that complainant talked
extensively about her religion, to the point at which it made her fellow
employees uncomfortable. IRE 5, p. 2. At least one other FOIA technician
corroborated RMO1's account of the situation. IRE 6, p. 2.
Two of complainant's fellow FOIA staff members confirmed that complainant
had a large backlog of unanswered requests. IRE 6, pp. 1, 4-5. One of
these coworkers stated that she and several other FOIA technicians had to
form a team which met every Thursday to assist complainant in reducing her
backlog. This individual stated that complainant used them to do her work
for her, and that complainant preferred to socialize instead of doing her
share of the work. IRE 6, p. 5. On appeal, complainant argued that she
was not the only FOIA technician with a backlog of unanswered requests.
Complainant then refers to what she characterizes as an excerpt from the
FOIA request �pending list,� which is a cumulative list of all open FOIA
requests received by the branch. AFE G. This excerpt consists of about
86 backlogged FOIA requests. However, there is no information identifying
the employees responsible for processing the requests. Consequently,
it is not clear from this document whether and to what extent other FOIA
technicians had larger backlogs of unanswered requests than complainant.
On the basis of the foregoing, we find that RMO1's assessment of
complainant's job performance is supported by the record, and that
complaint has not presented evidence sufficient to show that RMO1's stated
reason for giving her a marginal performance evaluation for fiscal year
1993 was a pretext for discrimination on any basis. We now turn to the
second complaint.
Complaint No. 213-94
Harassment Based on Reprisal and Race
Complainant may establish a violation of Title VII by demonstrating
that, because of her race and her filing of complaint no. 081-94,
RMO1 subjected her to conduct so objectively offensive that it altered
the conditions of her employment, from the perspective of a reasonable
person in her position. Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 81 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17,
21-22 (1993); Meritor Savings Bank F.S.B. v. Vinson, 477 U.S. 57,
67 (1986); Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002, p. 2 (June 18, 1999).
The conditions of employment are altered only if the harassment culminated
in a tangible employment action or was sufficiently severe or pervasive
to create a hostile work environment. Enforcement Guidance: Vicarious
Liability for Unlawful Harassment by Supervisors, supra. A tangible
employment action constitutes a significant change in employment status,
such as hiring, firing, suspension, non-promotion, reassignment with
significantly different responsibilities, or significant changes
in benefits. Burlington Industries, Inc., v. Ellerth, 524 U.S. 742,
761 (1998); Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, at p. 8 & n. 31. Employment actions are
not tangible if they result only in an insignificant change in the
complainant's employment status. Enforcement Guidance: Vicarious
Liability for Unlawful Harassment by Supervisors, at p. 9.
We find that complainant established a claim of harassment based
on reprisal and race. The record reflects that complainant, who is
black, contacted an EEO counselor regarding her performance appraisal on
September 21, 1993 and filed complaint no. 081-94 on November 2, 1993.<6>
IRE 2, p. 1; IRE 3, p. 1. RMO1 became aware that complainant had gone to
a counselor by September 27, 1993, as evidenced by the fact that on that
date, RMO1 issued her staff a memorandum in which she referred to �the
recent discrimination charge filed against her.� ABE B. On November 4,
1993, RMO1 issued complainant an official conduct warning memorandum
for extremely low productivity. In that memorandum, RMO1 outlined
the corrective measures identified above as incidents (2) through (5).
She informed complainant that she would: suspend her flex schedule; put
her on a fixed schedule and charge her with AWOL every time she arrived
late or returned late from lunch; restrict her use of the telephone for
personal calls; and have her desk moved to where RMO1 could observe her.
IRE 9, pp. 3-4. These actions were carried out on November 5 and November
8, 1993, IRE 4, 5. On November 8, 1993, a male co-worker overheard
RMO1 call complainant a �black bitch.�<7> Between November 5, 1993,
and January 22, 1994, RMO1 charged her with several hours of AWOL.<8>
We must next determine whether or not these incidents are tangible
employment actions. This is significant because, when the harassment
does not result in a tangible employment action, the agency can raise
an affirmative defense to liability which it can meet by demonstrating
that it exercised reasonable care to prevent and correct promptly any
harassing behavior and that the employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the
agency or to avoid harm otherwise. Faragher v. City of Boca Raton,
524 U.S. 775, 807 (1998); Burlington Industries, Inc., v. Ellerth,
524 U.S. 742, 765 (1998); Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, at p. 12. If the actions taken by a
supervisor culminate in a tangible employment action, then that defense
is not available. Ellerth, 524 U.S. at 765; Faragher, 542 U.S. at 808;
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, at p. 7.
It is clear from the record that the racial epithet, RMO1's act of
requiring complainant to provide more specific medical documentation, and
RMO1's warning to her secretary not to talk too much with complainant were
not tangible employment actions. It is equally clear that the actions
that RMO1 took pursuant to the official conduct warning memorandum were
tangible employment actions. In its guidance the Commission noted
as an example the actions of a supervisor in a court case from the
Fourth Circuit. Those actions consisted of dramatically increasing the
plaintiff's workload, denying her the opportunity to attend a professional
conference, requiring her to monitor a co-worker, and generally giving her
undesirable assignments. The Commission suggested that this supervisor's
actions were substantial enough to significantly alter the conditions of
the plaintiff's employment, and therefore rose to the level of tangible
employment actions. Enforcement Guidance, EEOC Notice No. 915.002,
at p. 9, n.32.<9>
In the case before us, upon learning of the EEO complaint filed against
her, RMO1 essentially put complainant under a microscope, severely
restricting her day-to-day activities, subjecting her to extremely
close scrutiny, documenting every late arrival down to the minute,
and causing her to experience severe stress from the embarrassment and
humiliation that she experienced in front of her co-workers. Under the
guidelines established by the Commission, we find that actions described
as incidents (2) through (5) above constituted tangible employment
actions taken in reprisal for complainant's EEO activity. The timing
of RMO1's racial remark, together with the draconian nature of these
actions lead us to also conclude that RMO1 was motivated by unlawful
considerations of complainant's race. We therefore find that RMO1
harassed complainant based on reprisal and race, and that the agency
cannot raise an affirmative defense to liability.
Relief
Once discrimination is found, the agency is required to make complainant
"whole" by restoring her to a position where she would have been were
it not for RMO1's acts of discriminatory harassment and reprisal. Franks
v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418 (1975); Wrigley v. United States Postal
Service, EEOC Petition No. 04950005 (February 15, 1996). The agency must
therefore award an appropriate remedy unless it can show, by clear and
convincing evidence, that appellant would not have been entitled to that
remedy even absent discrimination. Davis v. Department of Justice, EEOC
Request No. 05931205 (September 1, 1994); Day v. Mathews, 530 F.2d 1083,
1085(D.C. Cir. 1976); 29 C.F.R. �1614.501(c)(2). As we indicated earlier,
while the agency presented enough evidence to show that complainant's
conduct and performance merited disciplinary action by RMO1, it has not
shown that RMO1 would have taken those same measures if complainant had
not filed an EEO complaint against her. Having found that the agency
must award a remedy, we must now determine what that remedy is.
In this case, there are no indications in the record that complainant
incurred any quantifiable losses for which back pay would constitute
appropriate relief. She does claim that she was charged with AWOL as
a result of being monitored by RMO1. She also claims to have suffered
from emotional distress as a result of RMO1's treatment of her, which
may or may not have caused her to have a miscarriage. We will therefore
enter an order directing the agency to change any AWOL charge incurred
by complainant between November 5, 1993 and January 22, 1994 to �leave
without pay,� and to allow complainant to submit objective evidence in
support of her claim for compensatory damages. See Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in
this decision, the Commission AFFIRMS the agency's final decision with
respect to Complaint No. 081-94, but REVERSES that decision with respect
to Complaint No. 213-94. The agency is directed to implement the order
for relief set forth below.
ORDER (D1199)
Within thirty calendar days of the date that this decision becomes final:
The agency shall change any charge of absence-without-official-leave
(AWOL) incurred by complainant between November 5, 1993, and January
22, 1994 to �leave without pay,� and to expunge said AWOL charges from
complainant's official personnel records.
The agency shall conduct eight hours of training for the individual
identified as RMO1 which addresses her responsibilities under Title
VII of the Civil Rights Act of 1964. The training shall place special
emphasis on prevention and elimination of racial harassment and reprisal.
If RMO1 is no longer employed by the agency, the agency shall furnish
to the Compliance Officer an SF-50 standard personnel action form or
any other appropriate documentation identifying RMO1's date of departure.
The agency shall conduct a supplemental investigation for the purpose of
ascertaining the amount of compensatory damages, if any, that directly
and proximately resulted from RMO1's discriminatory harassment of
complainant on or after November 5, 1993. This investigation shall
include a request for documentation of all medical expenses. In addition,
the agency shall ask complainant to provide any other objective evidence
linking her medical treatment and any other damages to the discriminatory
actions of RMO1.
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii), the agency shall award her reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
The agency shall post at the Food and Drug Administration's Center for
Drug Evaluation Research copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
The agency shall submit a report of compliance, as provided in the
statement entitled "Implementation of the Commission's Decision."
The report shall include supporting documentation of the agency's
calculation of back pay and other benefits due complainant, including
evidence that the corrective action has been implemented. The complainant
may petition for enforcement or clarification with respect to any aspect
of the order in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or filed your appeal with the Commission.
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. 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
__12-13-00_____________
Date
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
______________________________
1On 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.
2See Administrative Judge's Revised Order of Dismissal, dated February
22, 1995.
3The 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. The ADA regulations
set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC's website:
www.eeoc.gov.
4Under the Pregnancy Discrimination Act, 42 U.S.C. � 2000e(k)(1), claims
of discrimination based on pregnancy can be raised.
5RMO1 rated complainant on three elements, worth 40, 50 and 10 percent
of the overall evaluation, respectively. Employees were rated on a
scale of (1) through (5) with (5) denoting outstanding. A rating of
(3) corresponded to �fully successful� and a rating of (2) corresponded
to �marginally successful.� To arrive at a rating for each element,
the rating level would be multiplied by that element's weight and the
weighted score for that element entered. Then the weighted scores for all
three elements would be tallied for the total score that would determine
the overall rating. A total score between 200 and 299 corresponds to an
overall rating of marginally successful. Complainant was rated as fully
successful on element (1), fully successful on element (2) and marginally
successful on element (3). Her weighted scores for each element were:
120 (3 � 40); 150 (3 � 50); and 20 (2 � 10). Her total score was 290 (120
+ 150 + 20), which fell within the high end of the marginally successful
range. IRE 7, pp. 20-23. In the narrative section of the appraisal,
RMO1 indicated that complainant infrequently audited her pending list.
The record clearly indicates that the third element was not critical,
and RMO1 admitted as much. IRE 5, p. 1; ABE A, p. 3. Mathematically
however, the (2) rating on a non-critical element worth only ten points
was enough to pull complainant's total score down below the minimum of
�300" required for a �fully successful� overall performance rating.
6Commission policy protects a complainant from any act that is reasonably
likely to deter protected activity. See EEOC Compliance Manual - Volume
II, � 2 - Threshold Issues, EEOC Notice No. 915.003, p. 2-23 (May 12,
2000), and � 8 - Retaliation, EEOC Notice No. 915.003, p. 8-15 (May
20, 1998).
7A male FOIA technician gave a sworn and notarized statement that on
November 8, 1993, he witnessed RMO1 refer to complainant as a �black
bitch.� ABE K. Complainant contacted an EEO counselor about the
racial slur as soon as she heard about it. She maintained throughout
the processing of her complaint that RMO1 used the epithet in question.
RMO1 denied that she ever used the term �black bitch,� and maintained that
there were several versions of the incident floating around the office.
IRE 5, pp. 5-6. The EEO investigator tried to contact the individual
who claimed to have witnessed the incident, but that individual did not
return the investigator's telephone calls. It was not until complainant
filed an appeal that the witness submitted his one-sentence declaration
corroborating complainant's account of the incident. Nevertheless, the
agency has not presented any documents or statements which discredit
this witness's statement, or which undermine his credibility, despite
having the opportunity to do so on appeal. We therefore find, as a
matter of fact, that RMO1 made the racial remark attributed to her.
8The exact amount of AWOL that complainant was charged with cannot be
readily ascertained from the record. Complainant claims that she was
charged with 13.25 hours of AWOL between November 5, 1993, and January
22, 1994. IRE 4, p. 4; IRE 8, p. 12. Subsequently issued notices of
suspension and removal, however, indicate that RMO1 charged complainant
with 8.75 hours of AWOL during that time frame. IRE 9, pp. 7, 33-34.
9 In so doing, the Commission expressly disagreed with the Fourth
Circuit's contrary holding in that case. Id., citing Reinhold
v. Commonwealth of Virginia, 151 F.3d 172 (4th Cir. 1998).