01981093
11-13-1998
Betty L. Hicks, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Army and Air Force Exchange Service), Agency.
Betty L. Hicks v. Department of Defense
01981093
November 13, 1998
Betty L. Hicks, )
Appellant, )
)
v. ) Appeal No. 01981093
) Agency No. 96.001
William S. Cohen, )
Secretary, )
Department of Defense, )
(Army and Air Force )
Exchange Service), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from a final agency decision (FAD) concerning her
equal employment opportunity (EEO) complaint, alleging discrimination
on the basis of age (over 40), in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960.001.
The issue presented is whether appellant has proved, by a preponderance of
the evidence, that she was discriminated against on the above-referenced
basis when she was issued her interim performance evaluation report (PER)
for the period May 21, 1994, to January 27, 1995, on three different
dates: May 10, 1995; June 10, 1995; and later in June 1995.
On appeal, appellant makes many contentions, chief among them that
her immediate supervisor originally rated appellant's PER as 1-1, but
was intimidated by his own supervisor to lower the rating to a 2-2.
In response, the agency notes that appellant, in her appeal, actually
confirmed the finding of the FAD that the manager she cited as a
comparative employee was not similarly situated to her.
In applying the analytical framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and Loeb v. Textron, Inc., 600 F. 2d 1003 (1st
Cir. 1973) (applying the framework to cases of age discrimination),
we find that appellant cannot establish a prima facie case of age
discrimination, because the CE she cites was not similarly situated
to her in all relevant aspects of employment. This Commission has
previously ruled that in order to be considered similarly situated,
a CE must: (1) have come under the same manager's supervision, (2)
have performed the same job function, (3) worked during the same time
period, and (4) have the incident complained about occur during the
same time period as well. See O'Neal v. United States Postal Service,
EEOC Request No. 05910490 (July 23, 1991); Allen v. Dept. of the Navy,
EEOC request No. 05900539 (June 15, 1990). In this respect, while
appellant was a UA grade 9 Operations Manager, the CE was a UA grade 10
Sales and Merchandise Manager who reported to a different supervisor.
Furthermore, the CE's PER covered the period June 1, 1993, to April 30,
1994, encompassing the 1994 inventory, while appellant's PER covered
the period May 21, 1994, to January 27, 1995, which encompassed the
1995 inventory. Hence, we agree with the agency that appellant was
unable to establish a prima facie case of age discrimination.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
it is the decision of the EEOC to AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �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. 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:
Nov 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations