01974575
10-13-1999
Sandra Selvaggio, Appellant, v. William S. Cohen, Secretary, Department of Defense Agency.
Sandra Selvaggio v. Department of Defense
01974575
October 13, 1999
Sandra Selvaggio, )
Appellant, )
) Appeal No. 01974575
v. ) Agency No. SK-95-003
)
William S. Cohen, )
Secretary, )
Department of Defense )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal of a final agency decision concerning
her complaint of unlawful employment discrimination on the bases of sex,
reprisal, and age 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.
The appeal is accepted in accordance with EEOC Order No. 960.001.
BACKGROUND
The evidence of record reveals that appellant filed a formal EEO complaint
on October 20, 1994, alleging discrimination on the above-referenced
bases when (1) the annual performance rating she received on May 31,
1994 was reduced from "Exceptional" to "Highly Satisfactory" because the
reviewing official lowered her rating on Critical Element 1 (Interpersonal
Relationships) from four points to three points (over the objection of her
appraising supervisor); and (2) she failed to receive a performance award
after the reviewing official did not include her appraisal supervisor
in a meeting to discuss who should receive performance awards in 1994.
The agency accepted the complaint for processing and, at the conclusion
of its investigation, issued a final decision finding no discrimination.
This appeal followed.
The central event in this case arose when appellant's appraising
supervisor gave her an "Exceptional" on her annual performance rating.
After requesting that the appraising supervisor lower appellant's rating,
the reviewing official did it himself by marking appellant down from a
four to a three on the critical element for Interpersonal Relationships.
According to the reviewing official, appellant did not deserve four points
for interpersonal relationships because he had received several complaints
about her. During the appraisal process, the reviewing official had a
meeting with the Division Chiefs to discuss the distribution of awards.
Appellant's appraising supervisor was not invited to the meeting, although
she had previously informed the reviewing official that she wanted to
give appellant an award. The appraising supervisor's exclusion from
this meeting effectively denied her the opportunity to request awards
for her employees.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). See, Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases); see also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (applying
McDonnell Douglas to age cases). First, appellant must 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. Next, the agency must
articulate a legitimate, nondiscriminatory reason(s) for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the appellant must prove,
by a preponderance of the evidence, that the legitimate reason proffered
by the agency was a pretext for discrimination. Id. at 256.
Sex and Age
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the appellant 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 appellant
has established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983).
The Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
contends that appellant's performance appraisal was downgraded because
she was rude to other employees and was not a team player, i.e., she
ignored "customers" of her office who were waiting while she talked on
the telephone, inappropriately discussed things that she learned while
working in the administrative office, questioned managers about decisions
without knowing the facts and/or background, crumpled and threw away
a note she received from a manager in response to her e-mail regarding
training, directed questions that should have gone to supervisors to their
subordinates, spent too much time on collateral duties, and chose not
to attend telephone training and planning events that she was ordered
to attend. As for appellant's lack of a performance award, the agency
asserts that her appraising supervisor did not complete the paperwork
required for nomination.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, appellant now bears the burden
of establishing that the agency's stated reason is merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Appellant can do this by
showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, appellant has failed to meet that burden. Regarding the
downgraded performance appraisal, the only evidence that appellant offers
to support her claim of discrimination is that her appraising supervisor
believed that she should be rated "Exceptional." While that may be
true, it is not evidence of discrimination. The alleged discriminating
official obviously had the authority to overrule appellant's supervisor
decision concerning the performance appraisal. Appellant's supervisor
and a co-worker state, in their respective affidavits, that they believe
the alleged discriminating official to be sexist; however they offer no
evidence which proves that such sexism, if it exists, played a role in
appellant's performance appraisal. Appellant's claim is further weakened
by the following statement, made by her, in an affidavit, "I can't recall
any specific incidents or comments involving the [alleged discriminating
official] that indicate that he discriminates based on age and sex,
but it's a general perception." In the absence of specific evidence,
appellant's perceptions are irrelevant. Additionally, concerning
the performance award, appellant offers no evidence which disputes
the agency's contention that she was not officially nominated for an
award. She does assert, however, that her supervisor was excluded from a
meeting in which the distribution of performance awards were discussed.
However, as the agency explains, only Division Chiefs were invited
to the meeting and appellant's supervisor was not a Division Chief.
Based on the foregoing, the Commission finds that appellant's evidence
is insufficient to establish pretext.
Reprisal
In order to establish a prima facie case of discrimination for an
allegation of reprisal, appellant must show: (1) that she engaged in
protected activity, e.g., participated in a Title VII proceeding; (2)
that the alleged discriminating official was aware of the protected
activity; (3) that she was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and (4)
that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff'd, 545
F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
In the present case, we find that appellant has failed to establish a
prima facie case regarding reprisal. In an affidavit signed by appellant,
she states:
I did not participate in any EEO investigations or complaints prior to
this one and the reprisal I refer to in my complaint relates to reprisal
for performing my job duties and not for EEO activities.
As such, appellant has failed to prove the elements required to make
out a prima facie case based on reprisal.
CONCLUSION
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we hereby AFFIRM the final
agency decision.
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 the 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 the 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 the 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:
Oct. 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations