01974920
08-02-2000
Veronica L. Ford, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Veronica L. Ford v. Social Security Administration
01974920
August 2, 2000
.
Veronica L. Ford,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01974920
Agency Nos. 322-93, 425-93, 754-93, 524-94, 647-94, 795-94
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's August 5, 1997
final agency decision<1> concerning her consolidated equal employment
opportunity (EEO) complaints in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<2> In her complaint,
the complainant alleged unlawful employment discrimination and reprisal.
At the time of the filing of her complaints, the complainant was a GS-12
Social Insurance Specialist (SIS) in the Office of Disability (OD),
Division of Disability Process Policy (DPP), Disability Procedures Branch
(DPB). The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUES
The issues on appeal in the six complaints are whether the complainant
has proven by a preponderance of the evidence that she was subjected
to reprisal, race or sex discrimination, with respect to performance
evaluations, review and supervision of her work, awards, non-selection
for various positions, and an assignment.
BACKGROUND
1. Agency No. 322-93
The complainant alleged that she was discriminated against on the basis
of reprisal<3> when:
1. On October 13, 1992, she received a performance evaluation of fully
satisfactory for the period October 1, 1991 through September 30, 1992,
and did not receive an evaluation of excellent.
2. From October 1991 through February 11, 1993, she was subjected
to different performance standards of review and a different level of
supervision and assessment of her work assignments than that of other
GS-12 co-workers.
3. In December 1992, she did not receive a cash award.
In its final decision, the agency found that the complainant received an
evaluation of fully satisfactory based on her demonstrated performance and
that she was subjected to the same standard of review as her co-workers.
The agency noted that the complainant had the burden of providing
evidence to justify a change in her evaluation and she failed to produce
convincing evidence to justify revision of any generic job task (GJT)
or her evaluation. Regarding the cash award, the agency stated that
the complainant had not received a cash award because she did not receive
a performance rating of excellent.
In her affidavit, the complainant stated that she was employed in her
present position as an SIS from 1991 and that she has worked under
the immediate supervision of LS since that time. GP was her second
level supervisor. She stated that the rating she received was unfair
and not an accurate representation of her work and that she should have
received a higher rating for GJT Nos. 8 and 68. The complainant also
stated that her work was consistently judged by subjective standards
and arbitrary interpretations. She provided examples to illustrate her
claim that she was subjected to different treatment by her supervisor.
The complainant stated that management was never satisfied with her
work product, would second guess her and often made changes to her work,
including telling her to conduct additional research and to be concise,
or asking her to eliminate information. She also stated that she would
submit projects and receive no feedback.
The complainant stated in her affidavit that she filed an EEO complaint
in 1990 regarding a 1990 performance rating and that when she was
detailed to the OD, all information pertaining to her dissatisfaction
was forwarded to the DPB.
In her affidavit, LS, Deputy Branch Manager and the complainant's first
level supervisor at the time of the alleged discrimination, stated that
the complainant came to the unit on a technical detail in May 1991.
She stated that the rating that she provided was more than fair and that
she rated her based on her performance. The complainant did not have any
program background when she came to the DPB but she was provided training.
LS had concerns regarding the manner in which the complainant applied
technical knowledge. She stated that the complainant had minimal
technical knowledge at the time and was in a learning mode.
The affidavit of LS reflects that the complainant's main responsibility
during the rating period was to rewrite the Prisoner Procedure.
The complainant was provided with feedback and provided with direction in
preparing the rewrite but the complainant was very resistant to receiving
feedback and was resentful when changes or corrections were made to the
rewrite. The complainant did not follow the format in presenting her
information. Procedures that the complainant had written were wordy and
confusing. Submissions had to be revised and corrected. The complainant
was asked to provide a new approach to resolve frivolous claims and on
the day the assignment was due, she submitted a regurgitation of what
was already known.
LS stated that, during the rating period, the complainant was provided
with feedback and given directions. She stated that although the
complainant indicated that she was not provided with feedback, each
employee received copies of their finished product for review and
that she and GP routinely provided guidance and gave direction to their
subordinates. The complainant was held to the same performance standards
as her co-workers. Other employees were asked to perform additional
research or to re-check the accuracy of their work. The complainant's
work was not subjected to second guessing and revisions were requested
to ensure that the best possible product was released from the DPB.
She submitted samples of the complainant's writing with corrections.
Regarding the cash award, LS stated that the complainant did not
receive an award because only employees with ratings of excellent and
above were considered. The employees that she recommended for awards
received ratings of excellent or higher.
Concerning the issue of reprisal discrimination, LS stated that she was
not aware that the complainant had filed previous EEO complaints.
The record also contains the affidavit of GP, a Supervisory SIS and
the complainant's second level supervisor. Therein, GP stated that the
complainant did not correctly interpret researched information and as
a result, she did not produce a quality product. The complainant's
work required extensive rewrites and had the complainant followed
instructions properly, she would have consulted with her management team
to obtain further assistance. GP stated that the complainant's work
product was difficult to understand, lacked simplicity, succinctness
and proper punctuation and required rewriting. She also stated that
she did not subject the complainant to a different performance standard,
level of supervision, or assessment of her work. GP stated that it was
her responsibility to review the work of her subordinates. When the
work product was unclear, she asked for clarification or if additional
background was required, the work product was returned for revision.
She stated that the rating provided the complainant was fair, that the
complainant was evaluated using the same criteria as her peers and that
she was given the same consideration as her peers. GP noted that during
her performance discussion with the complainant, she stressed that she
wanted the complainant to become the best analyst that she could be and
that she would work with her to make it happen. She stated that the
complainant did not receive an award because her work was rated only
fully satisfactory.
GP denied that she was biased against the complainant because she had
previously filed an EEO complaint, stating that when the complainant
was assigned to her unit, she viewed the assignment as a new start for
the complainant and looked forward to a strong working relationship.
JM, Deputy Division Director and the complainant's third level supervisor,
stated in his affidavit that he was aware that the complainant had
prior EEO complaints and that she had a known record of difficulty with
management when she came to his division. He also stated that when the
complainant was reassigned to his unit, he assigned her to one of his
best managers, LS, who was the same race as the complainant. LS and her
supervisor, GP, comprised one of his best management teams. Because the
complainant had expressed an interest in becoming a supervisor, JM felt
that assigning her to LS would result in a very positive outcome because
LS was an excellent people person. JM further stated that the complainant
contacted him after she received her evaluation and he contacted LS and GP
who provided him with valid and substantive reasons why the complainant
received a fully successful evaluation. He was satisfied that LS and
GP had rated the complainant fairly and objectively.
JM stated that both supervisors reported that the complainant did her job
but was resistant to suggestions or input from management and that the
complainant felt that after she had completed a task, it was correctly
done and should not be subjected to any changes. Both LS and GP stated
that they frequently required their subordinates to make changes in
their work product, that the complainant was not treated differently
from other employees under their supervision and that any difference in
treatment by either supervisor was due to the work performance and not
for discriminatory reasons.
JM stated that while he did not keep abreast of the day to day performance
of each employee, he had not personally witnessed any performance by the
complainant that was indicative of a superior rating. He further stated
that the complainant was not a problem employee but that she needed to
be less combative and less adversarial towards management and that he
believed that she still harbored some resentment and hostility because
of her experience prior to her reassignment to his division.
WB, an SIS in DPB, stated in his affidavit that LS was his immediate
supervisor and GP was his second level supervisor until she was
reassigned. He stated that LS has told him to perform additional research
on assignments given to him and sometimes he made suggestions that were
not always accepted by her. LS had discussion with him when he provided
too much information or had done too much research on an assignment.
WB was also instructed by LS to re-check his work for accuracy.
Sometimes in an assignment wherein he provided management with exactly
what management had requested, management changed its mind and asked for
something different. WB also stated that it was not unusual to submit a
completed assignment and never hear anything further about it. He stated
that LS and GP provided him with direction and that he believed that
the two treated everyone under their supervision equally and fairly.
WB also stated that he was a senior analyst and the complainant
worked with him in the rewriting of the Prisoner's Policy Operations
Manual Systems (POMS). While he did not supervise the complainant, he
reviewed her work on the project. He opined that he would have rated the
complainant's work as fully successful. He stated that to his knowledge,
the complainant had no prior exposure to the prisoner policy/procedure,
that she needed direction and clarification in her work and that she
lacked the technical knowledge that others had who had worked in the
area for a long period.
DS, a Senior Social Insurance Analyst (SSIA) and a White male, OD,
Division of Field Disability Operations (DFDO), stated by way of affidavit
that he was employed as an SSIA from March 1987 until December 1992.
He had worked under the immediate supervision of LS and GP had also
supervised him at the second level . He stated that he was instructed by
LS and GP to perform additional research on work he had to complete and
was also told by them that he needed to exclude information from his work
product and to double check information that he had obtained. It was not
uncommon for him to have to make changes in his work at the request of
LS or GP. DS stated that he also received feedback. Because the DPB
was responsible for writing and developing national policy, accuracy
was strongly emphasized. DS stated that he never noticed that LS or GP
treated the complainant any differently from anyone in the DPB and that
both were very fair and people-oriented supervisors.
The record reveals that six employees received awards in the DPP.
2. Agency No. 425-93
The complainant alleged that she was subjected to reprisal on January
23, 1993, when she was not selected for the Mid-level Management Program
(MMP), advertised under vacancy announcement MMP-2, because she received
an average assessment of her performance, instead of an outstanding
rating.
In its final decision, the agency determined that the complainant was
not selected because her performance was average and this assessment
limited her competitiveness.
The record contains the MMP-2 vacancy announcement which contains a
description of and evaluation criteria for the MMP. Applicants were
evaluated and rated using a six-part Supplemental Qualifications
Statement (SQS) form, an Evaluation of Managerial Potential (EMP) form,
and Assessment Activities (AA). The record contains documentation,
containing information and instructions regarding the SQS, the EMP and
the AA.
Each applicant had to prepare and submit an SQS, addressing each of
six management functions identified therein. The SQS maximum score was
96 points. The EMP consisted of eight �effectiveness characteristic�
factors. Part I of the EMP had to be completed by the first and second
level supervisors. Part I was worth a total of 48 points, with a maximum
score of 24 for each supervisor's evaluation on the eight effectiveness
characteristic factors. Part II of the EMP was rated by the Associate
Commissioner, Regional Commissioner or senior management official for a
maximum score or 48 for a highly recommended applicant. Regarding the
third criterion, AA, the results of the SQS and the EMP were used to
identify applicants with the highest scores who would make the Well
Qualified List (WQL).
On the SQS, which was rated by two independent raters, the complainant
received a score of 35 from one rater and a score of 43 from the second
rater for an average SQS score of 39. The complainant received a score
of 16 points on the EMP scored by her supervisors.
In her affidavit, the complainant stated that she was not selected
because she received an average assessment and not an outstanding
assessment. She also stated that GP evaluated her for the MMP and
although LS was involved in providing input in the evaluation, she was
never informed that LS would not be an evaluating official. She stated
that she was not evaluated by both supervisors as required by the MMP.
The complainant stated that both GP and LS were aware that she had filed
an EEO complaint.
GP stated that she signed as the first level supervisor on the EMP
to avoid any potential conflict of interest which might have resulted
if LS, who was also an applicant for the MMP, rated the complainant.
She stated that she rated the complainant average in every category and
that her rating was consistent with the level of work she had seen the
complainant perform under her supervision and was consistent with her
yearly performance evaluation. LS further stated that her observation
of the complainant was that she was average in all the eight factors
that the EMP identified and that she provided an explanation to support
the rating that she gave. LS stated further that while the complainant
worked under her supervision, she never felt that the complainant should
be rated higher than fully successful. Upon completion of the EMP,
she consulted with LS who provided input into the evaluation. GP also
stated that during the time that she supervised the complainant, she
had kept the complainant's third level supervisor, JM, informed of the
complainant's performance.
JM stated in his affidavit that he signed as the second level supervisor
in the MMP evaluation because LS was an applicant for the program
and he wanted to avoid any appearance of a conflict of interest.
He also stated that he had taken similar action in the past. He noted
that both GP and LS conferred in their evaluation of the complainant
and he concurred fully with them. He stated that he was aware of the
complainant's performance because she had complained directly to him
regarding her performance evaluation. It was his testimony that GP
and LS were excellent supervisors and that their assessment of the
complainant on the MMP was very accurate.
WW, Branch Chief, Office of Training, Office of the Deputy Commissioner
for Human Resources (HR) stated in his affidavit that he was responsible
for the administration of the MMP program, announced under vacancy
announcement MMP-2. He stated that 398 candidates applied at the GS-12
level and 52 made the best qualified list. He stated that the complainant
was rated average on each factor on the EMP and these ratings limited her
from the competition on that level. The average score received on the EMP
was 91.6. The average SQS score was 41.1. When the complainant's SQS
score (39) was added to the complainant's EMP score, she had an overall
score of 55. Her SQS score was determined by the two independent raters
and based on the information that the complainant had provided in the SQS.
The minimum overall score for advancement to the next level was 135.
WW stated that even if the two independent raters had given the
complainant the maximum score, noting that no applicant had received
the maximum score, the complainant still would not have received a
score sufficient to have made the well-qualified list. He also stated
that even if the complainant had received a score sufficient to advance
her to the well-qualified list, she had to pass two additional screens
to be selected. WW also stated that the evaluators who scored the
complainant on the SQS portion of the evaluation had no reason to know
that the complainant had filed a prior EEO complaint.
3. Agency No. 524-94
The complainant alleged that she was discriminated against on the basis
of reprisal when:
1. On October 15, 1993, she received a performance evaluation of fully
satisfactory for the period October 1, 1992, through September 30, 1993.
2. She did not receive an award for the performance period cited above.
In its final decision, the agency stated that the complainant received
a fully successful rating based on performance deficiencies and her
average performance did not justify a performance award. The agency
also stated that the complainant had failed to sustain her burden of
providing evidence to justify revision of any GJT or summary appraisal.
The complainant stated in her affidavit that her work was subjected
to more critical reviews than the other SISs in the DPB because of her
prior EEO complaints. She stated also that many changes were made to
her work after it was submitted and that different directions are given
and taken after she has completed the work. The complainant further
stated that although she submits letter perfect work, it is changed when
it is reviewed by LS and GP.
In her affidavit, LS stated that when she assigns work, her method is
to provide a few directions and inform her employees that, if needed,
they can come and discuss the work with her and what direction to
take. She stated that the complainant does not come to discuss her
assignments or directions. When the complainant submits her work,
it is sometimes in the wrong direction and the work has to be redone.
The complainant becomes defensive when those situations occur and
she rejects constructive criticism. LS stated that the complainant's
work receives more review than others in her category because her work
requires more review and not for reasons of reprisal. She stated that
the main reason that the complainant did not receive a higher rating
was that she required hands-on supervision to a degree that should not
be expected for her position and grade.
Regarding the award, LS testified that the complainant did not receive
one because her rating was only fully satisfactory and no one from the
DPB received an award with such a rating.
In an unsworn statement submitted in response to the affidavit of
LS, the complainant stated that her work assignments were completed
according to the directions given to her by LS but that LS consistently
changed her work in the review process, including changes not in the
original directions. She denied that when directions were given in
assignments, further direction and discussion were indicated by LS.
She also stated that on her own initiative, she has met LS when LS needed
to be apprized of any actions required for completing an assignment.
The complainant also stated that LS became defensive when she posed valid
concerns regarding criticisms LS raised about her work. Regardless of
the information she offered to support her conclusions, LS objected to
the information, demonstrating a lack of knowledge and understanding of
the issues raised. The complainant also stated that the changes in her
work were not the result of errors or omissions but were the result of
different directions or added considerations that arose after her work was
submitted for review. She stated that she made requested changes without
objection because it was apparent to her in any discussion with LS that
her voice and facts were neither heard nor seen. The complainant stated
that LS was more critical of her work and she observed her consistently
providing hands on supervision for an employee who received an excellent
rating. Because she was the only employee in DPB to receive a rating
of fully satisfactory, she did not receive a monetary award.
In his affidavit, JMD (Caucasian, prior EEO activity), who was Chief
of the DPB, the complainant's second level supervisor at the time of
the evaluation and a reviewing official, stated that he was aware that
the complainant had filed prior EEO complaints. He denied that the
complainant's evaluation of fully successful was a result of reprisal.
He stated that he had first hand knowledge of the complainant's work
and his review of the rating was based on the evaluation by LS and his
knowledge of the complainant's work. Regarding the award, he stated
that the complainant was not recommended because her rating was fully
satisfactory and no employee with a fully satisfactory rating received
an award.
The Personnel Manual for Supervisors, Monetary Awards provides that
monetary awards are given at the discretion of management. To be
considered for an award, employees had to have received a performance
evaluation of fully successful or higher. Appendix B to the Manual
provides that employees rated at outstanding or excellent should receive
an award and that employees rated as fully successful may receive an
award.
The record reflects that all the employees who received awards had
ratings of outstanding or excellent.
4. Agency No. 754-93
The complainant alleged that she was discriminated against on the basis
of reprisal<4> when:
1. On April 2, 1993, another employee was detailed and the complainant
was assigned a part of the detailed employee's workload; and
2. On April 16, 1993, the complainant did not receive an on-the-spot
award.
In its final decision, the agency stated that complainant was assigned
to handle an area of a detailed employee's work based on management's
assessment of resource allocation. The agency also stated that the
complainant's performance did not justify an on-the-spot award.
In her affidavit, the complainant stated that although management
consistently rated her work as substandard to other employees, it had
no problem in assigning her work of another employee. The complainant
also stated that in October 1992, she asked her supervisor what would
be required to receive an excellent or outstanding rating since she
knew that awards were connected to the rating received. Her supervisor
told her that a higher rating was based on the kind of assistance that
an employee required to complete her work. The complainant stated
that she completed her assignments independently and used judgment in
performing her work. The complainant did not receive an award and she
stated that she was the only employee who did not receive an award.
The complainant stated that current managers in her office were aware
of her discrimination complaints.
JMD, the complainant's second level supervisor at the time of the
complaint, stated that at the time of this complaint, he was not aware
of the complainant's prior EEO complaints. He further stated in his
affidavit that he made a management decision when he asked the complainant
to take on one area of the workload of an employee who was detailed.
The work needed to be completed. The assignment was nearly completed
when assigned to the complainant and there was little left to do.
JMD also stated that the complainant did not receive an on-the-spot award
because she did not meet the criteria. He noted that the criteria for
an on-the-spot award was a one-time contribution that occurred over a
short period.
A Temporary Personnel Issuance regarding on-the-spot awards indicates
that the purpose of on-the-spot awards is to promote creativity and
recognize employees who made notable contributions on individual tasks
or assignments. The criteria for such awards reflect that awards were
based on one-time employee contributions which benefitted the government
and occurred over a short period of time, normally not occurring for a
period longer than 120 days.
The record contains the justification for three of four employees who
received on-the-spot awards in 1993. RC received an award for writing
and publishing an emergency supplemental procedure to implement changes
in the processing of collateral estoppel cases, JMD, for the completion
of two tactical plans, and BD, for advancing the agency's initiative on
paperless processing.
5. Agency No. 647-94
The complainant alleged that she was discriminated against on the bases
of race (Black), sex (female) and reprisal<5> when:
1. On February 7, 1994, she was not selected for the position of Equal
Employment (EE) Specialist, GS-260-13, vacancy announcement V-251.
2. On February 7, 1994, she was not selected for the position of EE
Specialist, GS-260-13, vacancy announcement V-252.
In its final decision, the agency stated that the complainant was not
the best qualified candidate for either position.
In her affidavit, the complainant stated that two White females and a
Black male was selected for V-251 and a White male was selected under
V-252 in the Office of Civil Rights and Equal Opportunity (OCREO).
She stated that she should have been selected for one of the positions
because she served in the OCREO from February 1977 to November 1989 in
positions ranging from clerical to professional and that when she left
OCREO, she was an EE Specialist. She had the knowledge and background
of an EEO Counselor, a Discrimination Complaints Hearing Coordinator and
a Special Emphasis Program Manager. She worked in every aspect of the
EEO and civil rights programs, including department and EEOC hearings,
agency dispositions, affirmative employment, and reasonable accommodations
for employees with disabilities.
The complainant stated that during the time she worked as an EE Specialist
her performance was rated as excellent and that she received awards for
her performance. The complainant also stated in her affidavit that her
non-selection was based on reprisal because she had previously filed
an EEO complaint against OCREO and since 1989 was not selected for
approximately 14 vacancies for which she made the best qualified list.
After using the Commissioner's open door policy, she was reassigned
from OCREO to OD in a dead-end position. According to the complainant,
JF interviewed her for one of the two positions and was a manager in
OCREO when she used the open door policy. She stated that perhaps JF
made recommendations to the selecting official and she was denied the
positions.
MT (Hispanic, prior EEO activity), the selecting official and the
Director of the OCREO, stated in his affidavit that he was aware of the
complainant's prior EEO activity. He stated that he selected the best
available candidates for the two positions and that the complainant was
not selected because she was not among the best candidates. MT noted
that the complainant had been away from the EEO arena for about five
years when she applied for the positions and that the experience she
had previously held pertained to office operations in 1989. The office
changed immensely during the five years between the time the complainant
was employed and her application for the positions. MT also stated
that he selected employees who had the most recent experience in the
EEO field and in OCREO and who were current on the latest EEO laws and
regulations and office procedures. He noted that his selections were
based on an ability to communicate in the EEO language on computers and
utilize the EEO tracking system. He also considered knowledge and skills
in managing reasonable accommodations and conducting EEO counseling
full-time. He stated that these programs were not in existence when
the complainant worked in the EEO field and that the candidates that he
selected had the knowledge, skill and abilities to handle these areas.
The records reflect that the complainant was among the 16 candidates
who made the best qualified list. Of the four selectees, there was
one Black male, two White females and one White male. Three of the
four selectees (two White males, one White female) scored above 140.
The fourth selectee (Black male) scored 132. The complainant scored 131.
Among the non-selectees were five females whose scores were 132 and above.
Of these five non-selectees, one Black female scored 132; one Black female
scored 134; two Black females scored 135; and one White female scored 145.
The highest score received by a Black female was 135.
The record contains the Experience and Qualifications Statement of all
the candidates who made the best qualified list. These records reflect
that the complainant worked as an EE Specialist from 1985 to 1989.
All of the selectees were working as EE Specialists at the time of their
application. The male selectee who scored the highest was working as
an EE Specialist from 1986. The second male selectee worked as an EE
Specialist from December 1988 to May 1990 and beginning September 1990.
One female selectee was working as an EE Specialist from October 1993 and
had done so previously from December 1979 to October 1992. The second
female selectee was working as an EE Specialist from April 1991.
6. Agency No. 795-94
The complainant alleged that she was discriminated against on the basis
of reprisal<6> when on May 31, 1994, she was not selected for the Deputy
Commissioner for Programs (DCP) Rotational Program, vacancy announcement
Y-76.
In its final decision the agency noted that the complainant was not
selected because her qualifying score was lower than those selected.
In her affidavit, the complainant stated that she applied for the DCP
Rotational Program in November 1993 but she was not selected, although
four White employees from her office was selected for the program.
She also stated that her supervisor JMD, who had been named by her
in a prior EEO complaint, had to prepare the narrative statement of
recommendation for her participation in the program.
Vacancy announcement Y-76 reveals that there were 20 vacancies for the
position of Program Associate in the Rotational Program. Applicants
for the position were evaluated on the following factors: performance
evaluation, work experience, awards, training and self-development and
recency of developmental program participation.
The record contains the names of the 51 candidates (34 White, 14 Black,
1 Asian, 1 Hispanic and 1 unknown) who made the List of Eligibles and Best
Qualified List (BQL). There were three candidates (1 Black, 1 White,
1 Hispanic) on the BQL, including complainant, who worked in the OD,
DPB. Of the 20 candidates ultimately selected from the BQL, 19 received
scores between 60 and 75. One of the selectees received a score of 35,
the minimum score. Six other candidates including complainant, received
a score of 35 on the BQL. A total of four candidates were selected
from the OD. Two received scores of 75 and two received scores of 65.
Two of the four selectees from the OD were from DPB. The two selected
from DPB received scores of 75 and 65.
The record contains a sworn statement from AY (Black, prior EEO),
Counsel to the Commissioner of the agency. Therein, AY stated that
the Rotational Program began under his auspices. He was the selecting
official but he was not aware of the complainant's prior EEO activity.
In making his selections, AY considered the following: (1) diverse group
of rotational employees; (2) equality of components within the program,
ensuring that all components were represented; (3) a balance between
genders; and (4) the candidates rated highest. AY noted that he sought
employees who aspired to a variety of assignments with the agency and
those with an attitude toward completion of the program. He stated
that he obtained his information from the recommendations made by the
components. AY noted that there were a lot of good candidates who were
not selected because there were only 20 positions.
In his affidavit, JMD, who was the complainant's second level supervisor
at the time she filed her complaint, stated that he was aware of the
complainant's EEO activity. He stated that he completed a standard form
evaluating the complainant and that overall, his evaluation was positive.
He was not aware why the complainant was not selected for the position.
CONTENTIONS ON APPEAL
In her appeal, the complainant asserts that she never received a rating
above the rating of fully successful during her tenure in OD and was
accordingly excluded from promotions, awards and selections for agency
programs that would lead to promotions or enhanced career opportunities.
She further asserts that she was the only employee in her unit under LS
rated less than excellent in performance appraisals for 1992 and 1993
and therefore was the only employee not to receive an award. She further
asserts that she was not selected for the MMP in 1993 because she received
a rating of average from GP after consultation with LS. She also asserts
that successful completion of the MMP would have led to a promotion and
enhanced career opportunities.
The complainant contends that she was not selected for the positions
advertised in vacancy announcements V-251 and V-252, although she was
on the best qualified list. Regarding the vacancies, she states that a
Black male and three White applicants were selected over her and all other
Black female applicants of equivalent qualifications and that but for
her rating on awards received, she would have been rated more qualified
than the Black male selectee. She states that a White male was selected
over her and all other Black female applicants of equal qualifications.
Regarding both positions, the complainant states that the selectees
had no history of EEO activity and that MT, the selecting official, had
knowledge of her prior EEO activity. The complainant also asserts that
the reason advanced by MT for her non-selection, i.e., that she lacked
recent EEO experience, was pretext for the alleged discrimination because
it was not part of the criteria set forth in the vacancy announcements.
The complainant also contends that she was not selected for the position
of Program Associate in the Rotational Program because the selection was
made based on the recommendation of JMD. She notes that JMD was named
in prior EEO complaints which she had filed and that he supervised
and worked closely with LS who also supervised her and had extensive
knowledge of her prior EEO activity.
The complainant asserts that the adverse employment action in Agency
No. 322-93 occurred in October 1992 while a previous EEO complaint
(Agency No. 455-91) was still pending against the same management
officials in OD; that the adverse action in Agency No. 425-93 occurred
two months after she initiated EEO activity in Agency No. 425-93 and
while previous discrimination complaints, including Agency No. 455-91,
were pending against the same management officials; that the adverse
employment action occurred less than three months following the initiation
of Agency No. 754-93 and other complaints were still pending; that the
adverse employment action in Agency No. 647-94 occurred less than three
months following her initiation of Agency No. 524-94 and other complaints
were pending; and that the adverse employment action in Agency No. 795-94
occurred less than two months following the filing of Agency No. 524-94.
ANALYSIS AND FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of intentional discrimination under Title VII, it is the
burden of the complainant to initially establish that there is some
substance to his or her allegation. In order to meet this burden,
the complainant must establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Furnco
Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). This means that
the complainant must present a body of evidence such that, were it not
rebutted, the trier of fact could conclude that unlawful discrimination
did occur.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory explanation for its action. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). An agency meets its
burden of production if it introduces evidence sufficient to allow the
trier of fact rationally to conclude that the agency's action was not
based on unlawful discrimination. Burdine, 450 U.S. at 257. Once the
agency has articulated such a reason, the question becomes whether the
discrimination proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993).
The complainant can demonstrate pretext either directly, by showing that
discriminatory reasons more likely motivated the agency, or indirectly,
by showing that the employer's proffered explanations are unworthy
of credence. In St. Mary's Honor Center v. Hicks, the Supreme Court
held that a fact finder is not required, as a matter of law, to find
discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court, it
is not sufficient to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination. Id. at 519.
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, where, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether the complainant has
demonstrated by a preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Consequently, the factual inquiry can proceed directly to the ultimate
issue of whether the complainant has shown by a preponderance of the
evidence that the agency's actions were motivated by discrimination.
See Aikens at 713-714 (1983); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Department of Health and Human Services, EEOC Request No. 05900467
(June 8, 1990). Although the burden of production, i.e., "going forward,"
may shift, the burden of persuasion, by a preponderance of the evidence,
remains at all times on the complainant. Burdine, 450 U.S. at 256.
After a careful review of the record, the Commission agrees with the
agency's finding of no discrimination. Assuming that the complainant
established a prima facie case in each of her six complaints, she did
not present evidence sufficient to prove that more likely than not, the
agency's articulated reasons for its actions in each of her complaints
were a pretext for race, sex or reprisal discrimination. In reaching
this conclusion, we note that our review of the factual record for each
complaint demonstrates that the complainant has not disproved management's
proffered legitimate reasons for its actions in each case.
Regarding Agency No. 322-93, the complainant has failed to show that
reprisal motivated the agency when she received a satisfactory evaluation
and also did not receive a cash award. The complainant's rating was
based on her performance and not on a prohibited motive. In addition,
the complainant was not treated any differently than her co-workers,
nor was she subjected to a different standard of review and supervision
for discriminatory reasons.
In Agency No. 425-93, the complainant failed to establish that she was not
selected for the MMP in reprisal for her prior EEO complaints. As noted
earlier herein, the complainant's score was 55 and the minimum score for
advancement to the next level of competition was 135. The complainant
received a below average score on the SQS which she herself prepared
and which was scored by independent raters who had no knowledge of the
complainant's EEO activity. Even if the complainant's supervisors had
given her higher scores, it does not appear that she would have made
the next level of competition. Even if she had, she had to undergo
additional screening.
In Agency No. 524-94, the complainant failed to show that her evaluation
of fully satisfactory and her failure to receive an award was motivated by
discriminatory animus. The complainant did not receive a higher rating
because she required hands-on supervision. The complainant also did not
take criticism well, and appeared to be resistive to changes suggested
in her work by those who supervised her and did not seek the direction
she may have needed before submitting assignments. The complainant's
failure to receive an award was the result of her not having received
a rating higher than fully successful.
Regarding Agency No. 754-93, the complainant also failed to sustain her
burden of persuasion. When the complainant was assigned to complete
a detailed employee's workload, it was done to allocate the agency's
resources rather than as an act of reprisal. The complainant did not
receive an on-the-spot award because she failed to meet the criteria
for receipt of such an award.
In Agency No. 647-94, the complainant was not selected for the positions
for legitimate business reasons. The complainant did not have recent
experience in the OCREO, a consideration weighed by the selecting official
who was the Director of OCREO. Both court and Commission precedent
have consistently held that even where there are two equally desirable
candidates competing for the same position, the selecting official may
exercise his prerogative in choosing between the candidates, and absent
discrimination, a trier of fact should not substitute his judgment for
the legitimate exercise of managerial discretion. See Shapiro v. Social
Security Administration, EEOC Request No. 05960403 (December 6, 1996).
It was within the managerial discretion of the selecting official to
consider who had the most recent experience in the OCREO when he made his
selections for the positions from the candidates on the best qualified
list. In addition, while no Black females were selected for the position,
none of them, including the complainant, scored higher than one White
female who was not selected. Accordingly, the Commission finds that
the complainant's non-selection was not based on race, sex or reprisal.
With respect to Agency No. 795-94, the complainant was not discriminated
against on the basis of reprisal. While the complainant made the BQL,
she was not among the high scorers. The two candidates from DPB who
were selected scored much higher than the complainant. Although one of
the selectees had the same score as the complainant, that selectee was
not employed in the DPB. In addition, there were other applicants who
received the same score that the complainant had.
Finally, the Commission notes that the complainant raises the issue of
conflict of interest on appeal because MT, the Director of OCREO and
the selecting official for the vacancies at issue in Agency No. 647-94
signed the May 13, 1997 final agency decision. The complainant also
asserts that MT was the principal agency official involved in a prior
EEO complaint that is the basis for her claim of reprisal. The record
reveals that MT was named in Agency No. 647-94 in the allegations of
discrimination and was also the agency official with responsibility for
the agency's decision. When a complaint identifies the person responsible
for issuing the agency's final decision as the management official
responsible for discrimination, processing of the complaint and decisions
must issue from an official who is not involved in the complaint. Davis
v. Environmental Protection Agency, EEOC Request No. 05920097 (March 12,
1992)(the Commission remanded complaints to the agency for the issuance
of a new determination by an office other than the agency's Office of
Civil Rights and by an individual who was not connected, in any manner,
to the allegations raised in the complaint because the decision maker
was involved in the complaints); Ho v. Department of the Army, EEOC
Request No. 05980503 (April 20, 2000) (conflict of interest existed
when official who was involved in the allegations of the complaint wrote
agency's proposed disposition). Agencies must avoid conflicts of position
or conflicts of interest as well as the appearance of such conflicts.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 1-2 (November 9, 1999).
We agree with the complainant that when MT signed off on the May 1997
final agency decision, his action created a conflict of interest. It is a
conflict of interest for the alleged discriminating official to issue the
final agency decision on a complaint which involves the official. Scott
v. Department of the Navy, EEOC Appeal No. 01952948 (March 26, 1996).
However, the agency rescinded its May 13, 1997 decision. As reason for
its rescission, the agency stated that the May 13, 1997 decision was
mistakenly submitted to MT for signature, although MT was involved in
the complaints. The agency further stated that MT did not provide any
input into the May 13, 1997 decision, but simply signed it. The new
final agency decision was issued by the agency's Deputy Commissioner
for Human Resources. Accordingly, we find that no conflict of interest
existed with regard to the August 1997 decision. Moreover, we find no
evidence in the record suggesting that MT's participation in the EEO
process resulted in prejudice to the complainant, although we caution the
agency to avoid even an appearance of a conflict of interest.<7> Driscoll
v. Department of the Navy, EEOC Request No. 05940179 (December 21, 1994)
(although apparent conflict of interest where signer of offer of full
relief also signed complainant's notice of termination, no conflict
found because no prejudice to the complainant resulted from apparent
conflict); Oglesby v. Department of the Navy, EEOC Appeal No. 01985303
(September 17, 1999).
CONCLUSION
Accordingly, based on a careful review of the record, including
complainant's contentions on appeal, and arguments and evidence not
specifically addressed in this decision, it is the Commission's decision
to AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
August 2, 2000
__________________
Date
1The agency issued a final decision in this matter on May 13, 1997.
The complainant filed an appeal on June 6, 1997. In an August 5, 1997
decision, the agency rescinded its May 13, 1997 final agency decision and
the complainant timely filed an appeal of the new final agency decision
on September 3, 1997.
2On 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.
3In this complaint, the complainant alleged sex and reprisal
discrimination. However, the complainant concedes on appeal that she
has not produced evidence sufficient to establish a prima facie case of
sex discrimination. Therefore, sex discrimination will not be considered
herein.
4In this complaint, the complainant alleged race (Black) and reprisal
discrimination. However, the complainant concedes on appeal that she
has not produced evidence sufficient to establish a prima facie case
of race discrimination. Therefore, race discrimination will not be
considered herein.
5In her complaint, the complainant alleged race and reprisal
discrimination. However, the Commission notes that in an affidavit
submitted during the investigation of this complaint, the complainant
noted that she was adding sex as a basis of discrimination. The final
agency decision did not include sex as a basis. However, rather than
remand the complaint on this matter, the Commission will consider the
basis of sex since the record evidence is sufficient to make a finding.
6In this complaint, the complainant alleged race and reprisal
discrimination. However, the complainant concedes on appeal that she
has not produced evidence sufficient to establish a prima facie case
of race discrimination. Therefore, race discrimination will not be
considered herein.
7We note that when the records were submitted on appeal, MT indicated
in a letter that the complainant's statement submitted on appeal was
reviewed and that nothing was presented which would have required the
agency to change its decision.