01985770
02-24-2000
Jeanne Diedrich, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Jeanne Diedrich v. Department of the Army
01985770
February 24, 2000
.
Jeanne Diedrich,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01985770
Agency No. BUDEFO9607G0300
Hearing No. 210-97-6204X
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of age (DOB 7/18/41) in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and on the basis of reprisal (prior EEO activity) in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. <1>Complainant alleges she was discriminated against (1) on April 29,
1996, when she was issued her evaluation for the period between July 1,
1994 to June 30, 1995, and her supervisor either asked her to back date
the form or angrily challenged her about using the accurate date; and (2)
when she received ratings of "Success" rather than "Excellence" on two
ratings, "Technical Competence" and "Adaptability and Initiative." The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was
employed as a civilian employee, Office Automation Clerk, GS326-03,
in the Medical Brigade at Fort Sheridan, Illinois. Supervisor A was
complainant's first-level supervisor and rating official on the agency's
Form 7223, Base System Civilian Evaluation Report. Supervisor A did not
supervise or rate any other employee. Supervisor B was complainant's
second-level supervisor and rating official. The record indicates that
complainant had initiated an EEO claim against Supervisor B prior to the
events giving rise to this appeal. Complainant alleged discrimination
based upon sex in a formal complaint, dated December 15, 1993; the
matter was settled in early 1994. The record reveals that supervisor A
was assigned to complainant in April 1994 as her rater because of this
1994 settlement agreement. Complainant received no performance rating
from Supervisor B for the previous evaluation period ending June 30,
1994. Complainant's April 29, 1996 performance rating should have been
issued within 45 days of June 30, 1995. Complainant's overall rating
(consisting of four elements) was "Successful," which was the highest
attainable rating in her performance plan. She received a rating of
"Excellence" in two of the four elements and a rating of "Success"
in the other two elements, which are the subject of the current appeal.
Complainant asserted that when she asked supervisor A whether or
not to backdate her performance appraisal, supervisor A did not
respond. Complainant further asserted that she then told supervisor
A that she would not put in a fraudulent date. Complainant alleged
that supervisor A immediately became angry and told her that she would
find out what could be done by talking with the Staff Administrative
Assistant, who handled the personnel evaluations. Complainant further
alleged that supervisor A returned and indicated that it would be
fine if all three dates (for the rater, senior rater and ratee) were
consistent. Complainant stated that supervisor A admitted that her
Form 7223 was long overdue. Regarding the Technical Competence rating,
complainant alleged that supervisor A never mentioned minor typographical
and spelling errors as a concern. Complainant stated that she always used
the spell-check and that source documents provided by supervisor A were
disorganized, messy and difficult to read. Complainant further stated that
supervisor A wanted perfect documents; that the environment was hectic
and fast paced; and that supervisor A never inquired (during the rating
period) of others their opinion of complainant's performance. Concerning
both the Technical Competence and Adaptability and Initiative Elements,
complainant maintained that her tireless work in producing a slide
presentation for a Brigadier General, as well as for the 330th Medical
Brigade conference, serves as proof why she should be rated Excellence
in both elements. Complainant received a unit plaque awarded for her
efforts in connection with preparing slides for the Brigadier General's
presentation at the 330th Medical Brigade conference in June, 1985.
Supervisor A testified that complainant's Form 7223 was not issued in a
timely manner because complainant did not have a rating for the previous
rating period. Supervisor A stated that when she presented complainant
her Form 7223, she did not ask her to backdate it, but that she was
concerned that the proper date format be used, i.e., 29 April 96 versus
96-04-29. She indicated that she did not want an administrative error
which could stop processing of complainant's evaluation. She stated that
she did not recall how long supervisor B had complainant's evaluation
before he signed it, but knew that it was overdue before giving it to
him for his input. Regarding the Technical Competence element, supervisor
A testified that complainant needed improvement
in correspondence formatting, spelling and proofreading. She indicated
that corrections/deletions were usually noted in colored ink. While
acknowledging that complainant had certainly demonstrated a command
of various computer programs and had done an outstanding job with the
slide presentations, supervisor A asserted that this performance was
one portion of the element which she considered in conjunction with
complainant's need for correspondence improvements.
Also, supervisor A maintained that she never purposely provided
source material to make anything more difficult for complainant to
read or understand. Concerning the Adaptability and Initiative element,
supervisor A testified that complainant was always very pleasant and was
willing to try new ways and suggest better ways to do business. However,
she stated that she did not rate complainant at the Excellence level
because she did not see the push from her to meet that level.
Supervisor B testified that he did not recall when he was first given
complainant's Form 7223 to review as a senior rater, or how long he had
it before he reviewed, signed and gave it back to supervisor A. Factors
which he stated contributed to the delay in complainant receiving her
performance evaluation were: command expansion and personnel movement,
with a significant increase in personnel to support without an increase
in resources.
The record reveals that three other employees, who were also rated
by supervisor B, received their performance evaluations many months
late. There is no record of EEO activity for any of these three
employees. Complainant, supervisor A and B all placed the same date,
April 29, 1996, on complainant's performance rating. This was the actual
date of receipt by complainant.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint(s) on August 16,
1996. By letter dated October 26, 1996, complainant was advised that
her allegation had been accepted for investigation. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
After reviewing the evidence of record, the AJ issued a recommended
decision (RD), dated September 24, 1997, without a hearing finding no
discrimination. The AJ concluded that complainant failed to establish a
prima facie case of age discrimination because she failed to demonstrate
that similarly situated employees not in her protected class were
treated differently under similar circumstances. The AJ also found
that complainant failed to establish a prima facie case of reprisal
discrimination because complainant did not demonstrate that supervisor
A was aware of her EEO activity prior to the rating. Further, the
AJ found that there was no evidence that supervisor B influenced or
altered supervisor A's rating of complainant, and that there was no
nexus between complainant's prior EEO activity and the Success rating
in the two elements. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
supervisor A stated that, while complainant's work was excellent in many
respects, there were deficiencies in typed materials. The AJ also found
that complainant's evidence did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. Furthermore, the AJ found that other employees, including
one (DOB 9-23-60) considerably younger than complainant, also received
very late evaluations from supervisor B. Because the agency failed to
timely issue its FAD, the AJ's RD became the agency's final decision.
On appeal, complainant essentially contends that her rating of Success
in two of the elements could ultimately determine her employment status
in the event of a reduction of force by the agency. The agency requests
that we affirm its final decision.
ANALYSIS
ADEA
In an ADEA case, complainant may establish a prima facie case by showing
that she is in the protected group (over 40), and was treated less
favorably than other similarly situated employees outside her protected
group. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878
(1996). However, unlike in a Title VII case, complainant to ultimately
prevail must demonstrate that age was a determinative factor, and not
simply a factor, in the adverse employment action. Bell v. Department
of Veterans Affairs, EEOC Request No. 05950863 (Sept. 17, 1997)(citing
Loeb v. Textron, Inc., 660 F. 2d 1003 (1st Cir. 1979)).
In this case, we find that complainant has failed to establish a prima
facie case of age discrimination. While complainant is within the
ADEA's protected group, complainant has failed to present evidence that
similarly situated individuals not in her protected class were treated
differently under similar circumstances. One employee, considerably
younger than complainant, also received a very late evaluation from
supervisor B. Moreover, complainant has failed to show that age was a
determinative factor in the sense that "but for" age, complainant would
not have been subjected to the action at issue.
REPRISAL
In a reprisal claim, complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action. McDonnell
Douglas; Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997).
Here, the record clearly shows that complainant engaged in prior EEO
activity, beginning in December 1993 through culmination of a settlement
agreement some time in early 1994; that an agency official, particularly
supervisor B, was obviously aware of her prior EEO activity; and that
complainant was subjected to adverse treatment by the agency when she
received ratings of Success rather than Excellence on two ratings,
Technical Competence and Adaptability and Initiative. However, we find
that complainant has failed to show a nexus between her prior EEO activity
in 1993/1994 and the current incident which occurred in April 1996. We
note that a nexus or causal relationship between her prior protected EEO
activity and the later agency action may be shown by evidence that the
adverse action followed the protected activity within such a period of
time and in such a manner that a reprisal motive can he inferred. Grant
v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980). Generally, the
Commission has held that such a nexus may be established if the protected
EEO activity and the later adverse events occurred within one year of
each other. Patton v. Department of the Navy, EEOC Request No. 05950124
(June 26, 1996). In the instant case, the time elapsed between the
prior protected EEO activity and the later incident which occurred
in April 1996 is at least two years. Hence, without other evidence,
complainant fails to show the required causal connection between the
agency actions, irrespective of whether supervisor A was aware of her
prior EEO activity, and therefore cannot establish a prima facie case
of reprisal discrimination.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant failed to
present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's age group. We discern no basis to disturb
the AJ's RD. Therefore, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE
FILED WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30)
CALENDAR DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR
DAYS OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604). The
request or opposition must also include proof of service on the other
party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you to
file the action without payment of fees, costs, or other security. See
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq .; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791,
794(c). The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not extend
your time in which to file a civil action. Both the request and the civil
action must be filed within the time limits as stated in the paragraph
above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 24, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.