01971504
09-14-1999
Sandra Allen, Appellant, v. Janet Reno, Attorney General, U.S. Department of Justice, (Immigration and Naturalization) Service), Agency.
Sandra Allen v. U.S. Department of Justice
01971504
September 14, 1999
Sandra Allen, )
Appellant, )
)
v. ) Appeal No. 01971504
)
Janet Reno, ) Agency Nos. I-92-6167
Attorney General, ) I-93-6244
U.S. Department of Justice, )
(Immigration and Naturalization)
Service), )
Agency. )
_______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision
of the Immigration and Naturalization Service (agency) concerning her
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.; and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 633a et seq. Appellant alleges discrimination based
upon her race (Black), color (black), national origin (Panamanian), age
(DOB 7/27/48), sex (female) and reprisal (prior EEO activity) when: (1)
she was not selected for the position of Supervisory Purchasing Agency;
(2) she was not selected for the position of Contract Specialist;
(3) she received a "fully successful" performance review in 1992; (4)
she received a "fully successful" performance review in 1993; (5) she
was not allowed overtime; (6) she was denied leave on August 10, 1992;
(7) she was required to bring in a doctor's excuse when calling in sick
on August 10, 1992; and (8) she was not permitted to leave work early
in order to vote.<1> The appeal is accepted in accordance with EEOC
Order No. 960.001.
On November 23, 1992 and May 25, 1993, appellant filed formal complaints
alleging discrimination as referenced above. Appellant's complaints were
accepted and consolidated for processing. Following an investigation,
appellant requested a hearing before an EEOC Administrative Judge (AJ)
but subsequently rescinded her request. Pursuant to appellant's request
the matter was remanded to the agency for a final decision. On October
23, 1996, the agency issued its final decision finding no discrimination.
It is this agency decision which the appellant now appeals.
The record reveals that during the relevant time period, appellant was
a GS-7 Purchasing Agent in the Small Purchasing Unit of Contracting and
Procurement in the Administrative section of the agency's Western Region.
During the relevant time period S1 (white, American, female, DOB 8/24/48,
no prior EEO activity) and S2 (white, American, male, DOB 1/16/34, no
prior EEO activity) were appellant's first and second line supervisors,
respectively.
Denial of August 10, 1992 Leave Request and Requirement of Doctor's Note
When Sick Only One Day
Appellant asserted that she was treated in a discriminatory manner when
her August 10, 1992 leave request was denied. Both S1 and S2 affirmed
that no one was permitted to take leave in August, 1992 because of the
heavy workload and shortage of staff during that period. While appellant
asserted that other employees were permitted leave in August, 1992, the
individuals identified by appellant worked in a different division which
did not have a shortage of staff. The agency found that appellant failed
to present a prima facie case of discrimination and noted that appellant
failed to present any evidence of discriminatory animus or pretext.
The record shows that appellant was the only employee required to submit
a doctor's note after being out sick for only one day. The usual practice
within the agency was to request a doctor's note after three-day absences.
Accordingly, the agency found that appellant presented a prima facie case
of disparate treatment. However, S2 explained that while he did not
usually require such proof, he required appellant to submit a doctor's
note because she had previously asked for annual leave on the same day
she was out sick. S2 was suspicious that appellant was not sick, but
rather, used that excuse so that she could attend the conference that she
originally wanted to attend. The agency found that while S2's doubt may
not have been justified, since appellant did not have a history of leave
abuse, there was no evidence that such doubt was based on discriminatory
factors. The agency noted that appellant failed to present any evidence
of discriminatory animus or pretext. Accordingly, the agency did not
find the requirement of a doctor's note discriminatory.
Leave to Vote
S1 denied appellant administrative leave to vote on Election Day.
S1 explained that administrative leave was only granted where the voting
polls were not open at least three hours either before or after an
employee's regular work hours. The record showed that appellant's work
day ended at 4:30 p.m. and the polls did not close until 8:00 p.m. Thus,
under the agency's policy, appellant's work schedule provided her enough
time to vote without using administrative leave. Appellant identified
two individuals who were allegedly permitted administrative leave.
The record shows that neither individual took administrative leave to
vote. In addition, the identified comparative employees did not share
the same supervisor as appellant. Accordingly, the agency determined
that appellant failed to present a prima facie case of discrimination.
In addition, the agency noted that appellant failed to present any
evidence of discriminatory animus or pretext.
Non-Selection of the Supervisory Purchasing Agent Position
The record shows that appellant applied for and was qualified, but was not
selected for the Supervisory Purchasing Agent position. The record also
shows that appellant made the "best qualified" list and was interviewed.
However, appellant was ranked third out of six candidates. The individual
who was ranked first (C1) (Black, black, American, DOB 11/24/52, no
prior EEO activity) was ultimately selected.
The agency found that while appellant established a prima facie case
of discrimination, responsible management officials (RMOs) articulated
legitimate, non-discriminatory reasons for their employment action.
The RMOs explained and the record reflects that although appellant was one
of the best qualified candidates, appellant was not as qualified as C1.
The record reflects that C1 possessed more supervisory experience,
stronger automatic data processing skills, and greater knowledge of the
pertinent regulations and federal guidelines than the other applicants.
One of the RMOs also explained that C1 exuded managerial confidence
during his interview.
Appellant argued that the RMOs' reliance on C1's supervisory skills was
pretextual since C1's predecessor did not possess supervisory skills
when selected. The agency did not find appellant's argument persuasive.
Specifically, the agency noted that the vacancy announcement indicated
the importance of supervisory experience. However, even if the position
did not require supervisory experience, the fact that C1 possessed
such experience simply made him more qualified than those candidates
lacking such experience. The agency found the evidence insufficient
to prove pretext and noted that appellant failed to present any
evidence of discriminatory animus. Accordingly, the agency did not
find discrimination in the non-selection of appellant to Supervisory
Purchasing Agent position.
With respect to appellant's reprisal allegation, the agency noted that
appellant failed to prove that the selecting official knew of appellant's
prior EEO activity. In addition, the prior EEO activity took place in
March, 1992 and the non-selection took place in April, 1993, over one
year later. Moreover, the selecting official's affidavit was not taken
until October, 1993. The agency also noted that appellant failed to
present any evidence of retaliatory motives. Accordingly, the agency
found no discrimination with respect to appellant's reprisal claim.
Non-Selection of Contract Specialist Position
The agency determined that appellant established a prima facie case of
discrimination. Specifically, the record shows that appellant applied
for and was qualified, but was not selected for the Contract Specialist
position. Appellant was not "Certified" to the selecting official as
one of the three best qualified candidates, and thus, was not selected.
The candidates who the rating panel "Certified" to the selecting official
were S1, C2, and C3. S1 and C2 (White, American, female, DOB 2/27/53,
no prior EEO activity) were selected for the position.
However, the agency proffered a legitimate, non-discriminatory basis
for its non-selection. The rating panel explained that based on the
rating standards and the information from the candidates' SF-171s,
each candidate was given a numerical score for "quality of overall
experience and background." The scores were tallied and compared,
but neither panel member was involved in the ranking of the candidates
based on those scores. The personnel department ranked the candidates
from the scores.
The agency also noted that the record was devoid of evidence of pretext.
In addition, the agency noted that while appellant argued that C2
was selected because she (C2) filed a prior EEO complaint, the record
indicated that C2 was more qualified than appellant. Moreover, even if
the agency had selected C2 because of her prior EEO complaint, such basis
does not constitute a violation of Title VII or the ADEA. Accordingly,
the agency found that appellant failed in her ultimate burden of proving
discrimination.
Denial of Overtime
Appellant argued that she had her supervisor's approval to take five
hours of overtime in February, 1993, but after she worked the hours and
received credit for them, her supervisor denied the overtime.
The agency assumed appellant presented a prima facie case of
discrimination, but also found that she failed to show that the agency's
proffered legitimate, non-discriminatory reason was pretextual or that
it was otherwise motivated by discriminatory animus. Specifically,
the RMOs stated that appellant did not obtain permission for overtime in
advance which was the overtime policy within the agency. While appellant
asserted that she did obtain approval in advanced, the RMO denied that he
approved any request for overtime. The agency simply found insufficient
evidence in the record to refute the RMO's explanation and noted that
the record is devoid of corroborating evidence to support appellant's
claim that she was pre-approved for overtime.
Performance Evaluations
Appellant had received "excellent" performance appraisals prior to the
arrival of S1 to the Small Purchasing Unit. Appellant argued that her
"fully successful" rating from S1 was unfair and based on S1's disfavor
toward her rather than her actual work performance. The record shows
that S1 only evaluated two employees while in the Small Purchasing Unit;
appellant and C4 (White, female). S1 gave appellant a "fully successful"
rating in both her 1992 and 1993 performance appraisals. S1 gave C4 a
rating of "excellent" on her 1993 performance appraisal.
The agency found that appellant presented a prima facie case of
discrimination. In addition, the agency found that the record supports
the finding that S1 never counseled appellant on her performance and
failed to specify any criteria on which she based her decision to
rate appellant "fully successful." In addition, other employees found
appellant's work "excellent" and disagreed with S1's appraisal.
The agency found that while the evidence suggests that appellant was
treated unjustly by S1, other evidence in the record demonstrated
that S1's disfavor and unfair treatment of appellant was not based
upon appellant's race, national origin, sex, age or retaliation,
but rather on a personality conflict. For example, the agency noted
while C1 (Black) believed that appellant deserved a better rating on
her performance rating, he did not believe S1 treated black employees
any differently than white employees. Another employee (Black) stated
that she did not have a problem getting along with S1 and did not notice
that S1 treated Black employees any differently from White employees.
One employee stated that he noticed that appellant and S1 did not get
along and associated the conflict with his belief that S1 was a snob
and judged people according to their clothes. The record shows that S1
ridiculed appellant's and other employee's attire behind their back.
Others testified that S1 had a difficult personality and commented that
it would have been easy for S1 to develop conflicts with others,
regardless of race or ethnicity.
Allegations Not Accepted as Issues
The agency addressed each allegation not accepted as issues herein and
nevertheless found no evidence of discrimination.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the agency accurately set forth
the relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. We note that appellant does not raise
any contentions on appeal. Accordingly, we discern no basis upon which
to disturb the agency's finding of no discrimination and hereby AFFIRM
its final decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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:
9/14/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
1Appellant also made several allegations that were not accepted as issues
in this case. Appellant alleged that her first-line supervisor gave
her more work and less credit than other Purchasing Agents, nitpicked
appellant's work and criticized her more harshly than other Purchasing
Agents, interfered with appellant's career advancement, and did not
share bonus money that was awarded in the department. In addition,
appellant alleged that her second-level supervisor delayed her leaving
the agency to start her new job at a different agency.