01963213
10-01-1998
Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Lisa H. Perry v. Department of Defense
01963213
October 1, 1998
Lisa H. Perry,
Appellant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01963213
Agency Nos. TA-95-006
TA-95-015
DECISION
Appellant timely appealed to the Equal Employment Opportunity Commission
(EEOC or Commission) from a final agency decision (FAD) concerning her
allegations that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. 2000e et seq., and the Equal Pay Act of
1963, 29 U.S.C. 206(d)(1). The appeal is accepted for processing in
accordance with the provisions of EEOC Order No. 960, as amended.
The issue presented is whether the appellant proved, by a preponderance
of the evidence, that the agency discriminated against her because of
her race (African American), color (black) and sex (female) when she was:
(a) given a mid-year Position Performance Plan in December 1994 which she
felt was inaccurate and not in compliance with the agency regulations;
(b) given a mid-year Performance Appraisal in December 1994 which she
felt was inaccurate and not in compliance with the agency regulations;(c)
not compensated or promoted to a supervisory position for training other
employees; (d) paid less than other white male employees in the same
job category; (e) denied the opportunity to attend a training course in
February 1995; (f) excluded from meetings in January and February 1995;
and (g) given a highly successful performance rating in April 1995
based on an inaccurate performance plan. For allegations (e) through
(g), the additional issue is whether the agency retaliated against the
appellant for prior EEO activity.
Appellant was employed as a Contract Specialist, GS-1102-09, at the
agency's Defense Personnel Support Center, in Philadelphia, Pennsylvania,
at the time of the alleged discrimination. She filed two complaints,
in November 1994 and May 1995, making the above-noted allegations.
On July 27, 1995, the agency accepted the above allegations of the
two complaints<1> and conducted a consolidated investigation. At the
conclusion of the investigation, the agency notified appellant of her
right to request an administrative hearing before an EEOC administrative
judge or a final agency decision on the record. Appellant requested a FAD
without a hearing. The agency then issued the instant FAD on February 7,
1996, finding no discrimination.
The investigative record fails to show that the appellant was treated
differently than any other co-workers not of her protected class
in the terms and conditions of her employment regarding which she
feels that the agency did not treat her fairly or failed to comply
with its regulations. The appellant failed to identify any perceived
inaccuracies in her performance plan to her supervisor. The record
shows that the appellant and other employees in her job category worked
as a team under identical performance plans. Although the appellant's
supervisor was only required to give a pass-fail type mid-year appraisal,
he did not discriminate against the appellant when he told her that
her performance was highly successful. Team members were expected to
assist new employees, as necessary. The record shows that the white
male co-worker was in fact paid at the same GS-09 level as the appellant,
and both were paid in accordance with the General Schedule based on the
level of supervision and assistance deemed appropriate for that grade.
There is, therefore, no evidence that the appellant was paid less for
performing the same work than employees of the other race or sex.
Although the appellant had been approved to attend a training course
in February 1995, her name was left off the schedule for attendees and
she did not inform the supervisor of the omission. Her supervisor was
unaware of her desire to attend the meetings in January and February
1995 until after the meetings were over. Lastly, there is no evidence
to show that any other similarly situated employee received a higher
performance appraisal in April 1995 than the appellant.
After a careful review of the record, including the appellant's argument
on appeal,<2> we agree with the agency's final decision which adequately
set forth the facts of each claim and properly applied the legal standards
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)(for
allegations of race, color and sex discrimination under Title VII);
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass), affirmed, 545 F.2d 222 (1st Cir. 1976)(for
reprisal allegations); and, Corning Glass Works v. Brennan, 417 U.S. 188
(1974) (for allegations of Equal Pay Act violations).
Accordingly, the FAD is AFFIRMED.
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. � l6l4.604(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. 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 1, 1998
DATE Frances M. Hart,
Executive Officer
Executive Secretariat
1 The agency rejected four other allegations on timeliness grounds.
The appellant did not appeal the dismissal of those allegations.
2 On appeal, the appellant submitted copies of her own GS-9 performance
plan and that of a GS-11 white female Contract Specialist in support of
her contention that she was paid less than her co-workers for "identical"
performance plans. We reject the contention. The performance plans
clearly demonstrate that the expected levels of performance are different
for the two positions at different grade levels.