01974482
08-26-1999
Aleta N. Huser, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Aleta N. Huser, )
Appellant, )
) Appeal No. 01974482
v. ) Agency No. 3-95-0328
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges that she was discriminated against in reprisal for prior
EEO activity when her performance appraisal for the period ending June
30, 1994, reflected a rating of �Meets Requirements� in Job Element #2
(Written Communication). The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED as CLARIFIED.
The record reveals that during the relevant time, appellant was employed
as a GS-12 Criminal Investigator at the agency's Office of Inspector
General, Office of Investigations, in Atlanta, Georgia. Believing she was
discriminated against as referenced above, appellant sought EEO counseling
and subsequently filed a complaint on April 5, 1995. The agency accepted
the complaint for processing, and at the conclusion of the investigation,
appellant was granted thirty days to request a hearing before an EEOC
Administrative Judge. Appellant failed to request a hearing within the
thirty day time period. Thereafter, the agency, pursuant to 29 C.F.R. �
1614.110, issued a final decision finding no discrimination.
The FAD concluded that appellant failed to establish a prima facie case
of retaliation because she presented no evidence of a causal connection
between her prior EEO activity and an adverse employment action by
the agency. Assuming arguendo that appellant had established a prima
facie case of retaliation, the FAD found that appellant failed to prove
that the agency's legitimate, nondiscriminatory reason for its rating,
namely that appellant's performance merited the �Meets Requirements�
level for Job Element #2, was a pretext for retaliation.
It is from this decision appellant now appeals. On appeal, appellant
contends that the agency erred when it found that she was not adversely
affected by the �Meets Requirements� rating for Job Element #2 and when
it concluded that she was not subject to retaliation. The agency requests
that we affirm its FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
appellant can establish a prima facie case of reprisal by showing that:
(1) she engaged in prior protected EEO activity; (2) the responsible
agency officials were aware of that activity; (3) she was subject to
an adverse employment action; and (4) the adverse action followed the
protected activity at such a time and in such a manner as to permit
an inference of retaliatory motivation. See Devereux v. United
States Postal Service, EEOC Request No. 05960869 (April 24, 1997).
The Commission finds that appellant established a prima facie case
of retaliation. In reaching this conclusion, we note that appellant
had previously received �Exceptional� ratings for Job Element #2 and
that her first line supervisor (A-1) who rated the appraisal at issue
and her second line supervisor (A-2) who concurred with the rating were
aware that they had both been named as responsible management officials
(RMOs) in an EEO complaint filed by appellant on April 6, 1994, during
the rating period at issue herein. See Cruz v. Department of Defense,
EEOC Appeal No. 01951912 (August 2, 1996).
The Commission concludes that appellant failed to present evidence that
more likely than not, the agency's articulated reason for the �Meets
Requirements� rating was a pretext for retaliation. In reaching this
conclusion, we note that during the rating period at issue herein,
the agency implemented a new performance rating system consisting of
three possible levels of performance (Outstanding, Meets Requirements,
and Unsatisfactory), replacing a system of five levels (Outstanding,
Exceptional, Fully Successful, Partially Successful, and Unacceptable).
Upon review of the performance appraisal at issue, we find that
appellant received �Meets Requirements� ratings for Job Element #1
and Job Element #3, which on her immediately preceding appraisal, were
rated Partially Successful. As such, while a previously �Exceptional�
rating was reduced under the new system to a �Meets Requirements�
rating, two previously �Partially Successful� ratings were raised to
a �Meets Requirements� rating. Appellant has presented no evidence
that her written communication performance improved such between March
and June 1994 to warrant an �Outstanding� rating under the new system.
Accordingly, we find that the agency's action was, more likely than not,
the result of having implemented a new performance rating system rather
than the result of retaliatory animus.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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:
August 26, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations