01A04835
12-20-2001
Sheryl Hall, Complainant, v. Phillip Larson, Director, Executive Office of the President, Office of Administration, Agency.
Sheryl Hall v. Executive Office of the President, Office of Administration
01A04835
12-20-01
.
Sheryl Hall,
Complainant,
v.
Phillip Larson,
Director,
Executive Office of the President,
Office of Administration,
Agency.
Appeal No. 01A04835
Agency No. OA-97-03
DECISION
On June 30, 2000, the complainant timely initiated an appeal from a final
agency decision dated June 1, 2000 with the Equal Employment Opportunity
Commission (EEOC or Commission) concerning her complaint of unlawful
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), 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. Pursuant to 29 C.F.R. � 1614.405, the Commission accepts
the complainant's appeal.
ISSUE PRESENTED
Whether the complainant was discriminated against based on reprisal (prior
Title VII and ADEA EEO activity) when the narrative in her performance
appraisal covering the period of July 1, 1996 through July 15, 1997 did
not include a number of specific work accomplishments.
BACKGROUND
The complainant, a Supervisory Computer Specialist, GS-15, filed an EEO
complaint with the above claim. Following an investigation, according
to the final agency decision, the agency notified the complainant of
her right to request a hearing and she requested a final agency decision
without a hearing. The claimant submits no comment on appeal.
For the first nine months of the appraisal period in question, the
complainant's official immediate supervisor of record was Supervisor 1.
However, during the last six months of the appraisal period, Supervisor
2 started acting as the complainant's immediate supervisor and then
officially became such. Supervisor 1 became the complainant's second
level supervisor.
On August 11, 1997, Supervisor 2 invited his subordinates to submit a
self-evaluation or list of accomplishments as input into their appraisals.
Only the complainant responded. She did so with a three page single
spaced typed narrative of accomplishments. Two especially notable
accomplishments, according to the complainant, were (1) a project
initiated and engineered under her direction which saved approximately
$100,000 in telephone costs, and (2) providing management and technical
coordination for video conferencing for the high profile event of Net Day.
Supervisor 2 affirmed that after reviewing his own notes and the
complainant's input, he drafted a complete appraisal for Supervisor
1's review. He also forwarded the complainant's input to Supervisor 1.
Supervisor 2 indicated that he similarly drafted the appraisals of his
other subordinates for Supervisor 1's review. Supervisor 2 affirmed
that Supervisor 1 made minor revisions to the draft of the complainant's
appraisal, i.e., changed one sentence and suggested some word changes.
The appraisal was finalized on August 26, 1997 and given to the
complainant on September 10, 1997. After the appraisal was finalized,
Supervisor 1 resigned from the agency. His last day of work was on
September 5, 1997. The record contains no statement from Supervisor 1.
The overall rating for the appraisal in question was exceeds fully
successful, one level below the highest possible overall rating, and the
narrative in support of the ratings was, overall, very positive. However,
the appraisal narrative was more general than the complainant's input.
For example, while the complainant's input detailed at length how she
saved telephone costs, the appraisal narrative summarily stated that the
complainant demonstrated an understanding of agency and division policies
to ensure telephone system operations that met user needs and reduced
costs. Also, the appraisal narrative made no specific reference to
the Net Day accomplishment, nor to several other specific accomplishments.
ANALYSIS AND FINDINGS
The complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination. To establish a prima facie
case of reprisal discrimination, the complainant must show that (1) she
engaged in prior protected activity, (2) the acting agency official was
aware of the protected activity, (3) she was subsequently disadvantaged
by an adverse action, and (4) there is a causal link between the protected
activity and the adverse action. Simens v. Department of Justice,
EEOC Request No. 05950113 (March 28, 1996).<1>
The complainant filed an EEO complaint in February 1997 claiming
violations of Title VII and the ADEA with regard to a number of actions
by Supervisor 1.<2> Thereafter, she filed another EEO complaint in
approximately April 1997 claiming an additional incident of discrimination
by Supervisor 1.
The complainant claimed that she was retaliated against regarding the
appraisal at issue because of the above claims. The EEO counselor
contacted Supervisor 1 regarding the first claim by January 1997, and
the complainant stated that Supervisor 1 was aware of her prior claims.
Supervisor 2 affirmed that he was aware that the complainant had a prior
EEO claim against Supervisor 1, but did not know the details. He stated
that he learned about the claim because the complainant briefly mentioned
it to him.
The complainant established a prima facie case of reprisal discrimination.
She engaged in prior EEO activity when she filed EEO complaints in
February and April 1997, and Supervisor 1, who was the reviewing official
for the appraisal at issue which covered the period of July 1, 1996
through July 15, 1997, was aware of this EEO activity. The complainant
was later disadvantaged in that her appraisal did not set forth in detail
certain of her accomplishments. This occurred soon enough in time after
her EEO activity to raise an inference of reprisal discrimination.
Supervisor 2 explained that the purpose of appraisal narrative is to
support ratings and point to areas that would help enhance performance,
which is what his narratives did. He added that while the appraisal
narrative was not as detailed as the complainant's input, the gist of
the input was taken into account.
The complainant argued that this explanation was pretext to mask reprisal
discrimination. She stated that on January 14, 1997, Supervisor 1 sent
an e-mail to an agency Human Resources official regarding the overdue
appraisal which covered the period of July 1, 1995 to June 30, 1996,
that read �before I complete Sheryl Hall's we will need to discuss this
given the current EEO concern, I would recommend the [acting Director]
be included in the discussion.� While a copy of this e-mail is not
contained in the record, it is mentioned in the final agency decision
without dispute of its existence. The complainant contended that
Supervisor 1 should have added more narrative to her appraisal, and
that Supervisor 2 was motivated to retaliate because he was a longtime
personal friend of Supervisor 1. According to the complainant, they
frequently car-pooled together and socialized with one another's families.
The complainant also contended that in her mid-year review, Supervisor
2 referenced the EEO situation.
Supervisor 2 stated that to the best of his recollection, he never
referred or alluded to the complainant's �EEO situation.� He also denied
having a personal relationship with Supervisor 1. He stated that there
was never a family social relationship between his family and the family
of Supervisor 1. Supervisor 2 stated that while on four occasions he
provided Supervisor 1 transportation to and from an automobile repair
garage to work, they did not regularly car-pool.
The Commission observes that the narrative in the complainant's appraisal
is consistent in length and detail with the narratives of other employees
who worked under the immediate supervision of Supervisor 2 and the
indirect supervision of Supervisor 1.
Supervisor 2 was the official primarily responsible for drafting the
complainant's appraisal. Supervisor 1 served in a reviewing capacity.
Supervisor 2's denial that he had much knowledge about the complainant's
prior EEO activity, denial that he referred to the complainant's EEO
situation, and denial that he had a personal relationship with Supervisor
1is credible. Moreover, the nature of the claimed reprisal is unlikely.
While the appraisal narrative was briefer than the complainant wished,
the appraisal and its narrative was quite positive. The positive
appraisal is inconsistent with a retaliatory motive. The complainant
failed to establish that the agency's explanation for the substance of
her appraisal narrative was pretext to mask reprisal discrimination,
nor otherwise establish reprisal discrimination.
CONCLUSION
Based upon a review of the record and for the foregoing reasons, the
final agency decision finding that the complainant was not discriminated
against is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
___12-20-01_______________
Date
1Adverse actions need not qualify as "ultimate employment actions" or
materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Service, EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, Section 8,
Retaliation (May 20, 1998)). Instead, the statutory retaliation clauses
prohibit any adverse treatment that is based upon a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity. Id.
2In Hall v. Executive Office of the President, Office of Administration,
EEOC Appeal No. 01990163 (August 8, 2000), the EEOC affirmed the final
agency decision of no discrimination.