01A10929
09-14-2001
Elaine R. Crosby, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, (Food and Drug Administration) Agency.
Elaine R. Crosby v. Department of Health & Human Services, Food and
Drug Administration
01A10929
September 14, 2001
.
Elaine R. Crosby,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
(Food and Drug Administration)
Agency.
Appeal No. 01A10929
Agency No. FDA-R-042-99
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the basis of reprisal for prior protected activity arising
under Title VII when:
(1) on February 9, 1999, she received a lowered performance appraisal
for the period January 1, 1998, through December 31, 1998;
from May 11, 1998, through October 11, 1998, she served in the position
of Special Assistant to the District Director without the benefit of
a position description; and
no mid-year performance evaluation meetings were ever held with
complainant during the 1998 performance appraisal period.
The record reveals that during the relevant time, complainant was employed
as a Special Assistant to the District Director in the agency's Dallas
District Office (DDO). Prior to serving in this capacity, complainant
was employed as Chief of the Compliance Division within the DDO. The DDO
was reorganized and the Compliance and Investigative Divisions were
merged into one branch. Complainant was offered the directorship of this
new branch but declined the position. She was therefore appointed the
position of Special Assistant to the District Director. This appointment
is the subject of other appeals currently before the Commission.<1>
Although complainant has requested consolidation of these complaints,
the Commission finds it more useful to deal with them separately.<2>
As Special Assistant, complainant claims that her working relationship
with the District Director (RMO) deteriorated. Complainant states
that because she was working without a position description the RMO
was permitted to be arbitrary and capricious with his evaluation of
her performance. Further, she states that because she turned down the
position offered and then filed an EEO complaint against the RMO, he
unjustifiably rated her as having only �met� the requirements of her
position in two categories, while having �exceeded� the requirements
in the remaining two categories. Complainant's evaluation for the year
immediately proceeding this rating period reflected three �exceeds� and
only one �met.�
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on June 26, 1999.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of reprisal. The agency went on to conclude, nonetheless,
that complainant did not meet her ultimate burden of rebutting the
reasons proffered as being a pretext for discrimination. Specifically,
the RMO stated that he had nothing to which he could attribute an
�exceeds� rating. The RMO further stated that he offered complainant
the opportunity to present examples of her work which would demonstrate
that an �exceeds� rating was warranted, but complainant declined.
The RMO stated that the position description pertinent to complainant's
position was the same as a Special Assistant to an Office Director,
and that he met with complainant and her staff to discuss their roles.
The RMO stated that he could not recall complainant ever seeking further
guidance on her responsibilities. Finally, the RMO stated that upon
distribution of the mid-year reviews, he offered to meet with anyone
who requested a meeting. The RMO did not recall anyone, including
complainant, requesting such a meeting.
On appeal, complainant contends that she performs several functions
which warrant an �exceeds� rating, including that of Acting District
Director when the RMO is absent while also addressing the duties of her
own position. Complainant further states that she both supplied the EEO
counselor with a list of her accomplishments and requested a meeting
with the RMO to discuss her mid-year evaluation. Complainant also
comments on several alleged errors made by the RMO when he prepared her
evaluation. The agency requests that we affirm its FAD.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, and 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), a complainant
may establish a prima facie case of reprisal by showing that: (1)
she engaged in a 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 treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 26, 2000).
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that complainant failed to rebut the
reasons proffered as being a pretext for discrimination. In reaching
this conclusion, we note that complainant argues that she is considered
a sub-standard performer by the RMO, as evidenced by her evaluation.
To the contrary, the evaluation clearly states she �met� her requirements.
This is not sub-standard. Further, ultimately, complainant has presented
no evidence to persuade the Commission that the RMO's evaluation of her
was motivated by discriminatory animus. We also are not persuaded by
complainant's contention that the failure to provide her with a position
description constituted reprisal. See EEOC Compliance Manual, pp. 8-11 -
8-15 (May 20, 1998).
Lastly, the record reflects a dispute as to whether complainant asked
for a meeting. The RMO states he does not recall whether she did or not.
Complainant states that she requested such a meeting with a post-it note
that could or could not have been construed as vague. Nevertheless,
the mid-year meeting is not required and we query whether the lack of a
meeting rises to the level of adverse treatment. After a careful review
of the record as a whole, the Commission is not persuaded that the RMO
refused to have such a meeting; it appears, rather, that had complainant
simply made a clear request, one would have been held.
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 FAD.
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
September 14, 2001
__________________
Date
1 See EEOC Appeal Nos. 01A13046 and 01992309.
2 The Commission acknowledges complainant's concern that a full
understanding of the events cannot be had without reading the complaints
in tandem with one another. We agree, and thus processed all complaints
in conjunction with one another, albeit under two separate decisions.