01980981
08-24-1999
Gloria J. Barton, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Gloria J. Barton, )
Appellant, )
)
v. ) Appeal No. 01980981
) Agency No. BODN9602G0050
Louis Caldera, ) Hearing No. 140-97-8103X
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
On November 17, 1997, Gloria J. Barton (hereinafter referred to as
appellant) timely appealed the agency's final decision, dated October 14,
1997, concluding she had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq.<1> In her complaint, appellant alleged that agency officials
discriminated against her on the bases of her race (black) and in reprisal
for her previous EEO activity when she received an unfair performance
appraisal and when she was subjected to harassment.<2> This appeal is
accepted in accordance with the provisions of EEOC Order No. 960.001.
The record establishes that appellant was employed as a Budget Assistant,
GS-560-05, at the agency's Fort Bragg, North Carolina installation.
On December 8, 1995, appellant received an overall rating of �Level
2 Successful� on her performance evaluation for the appraisal period
of November 1, 1994 through October 31, 1995. Appellant was rated in
four areas of responsibility. She received the rating of �Success� in
three elements and �Needs Improvement� in the remaining element, Working
Relationships and Communications. Appellant stated that she received an
overall rating of �Exceptional� on her previous performance evaluation.
Appellant alleged that a white comparison employee who received the
same overall rating subsequently had her performance rating upgraded
to �Level 1 Successful�. The record establishes that this employee and
appellant had been involved in a verbal altercation on September 14, 1995.
Appellant claimed that the white comparative called her a �n-----� and
in response, she told the white comparative that she would toss her out
of a window if she again used racial epithets toward her. The white
comparative complained to agency officials that appellant threatened
to shoot her. Appellant stated that agency officials were unwilling to
listen to her side of the story, and she was forced to take administrative
leave with pay. Agency officials testified that this incident was not
a factor in appellant's performance evaluation. Upon her return to
work, appellant was assigned to a different work location. According to
appellant, she suffered harassment in the form of frequent reassignments,
changes in duties, and adjustments of work accounts in her computer.
The record reveals that appellant filed a formal EEO complaint with the
agency on February 7, 1996, alleging that the agency had discriminated
against her as referenced above. The agency accepted the complaint and
conducted an investigation. At the conclusion of the investigation,
appellant requested an administrative hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ).
On September 8, 1997, following a hearing at which eight witnesses
testified, the AJ issued a decision finding that the agency had
discriminated against appellant on the basis of her race with respect to
her performance evaluation. The AJ also found that appellant failed to
establish race discrimination with regard to her allegation of harassment.
Finally, the AJ determined that appellant failed to establish a prima
facie case reprisal with respect to the alleged incidents.<3> In reaching
his finding of race discrimination, the AJ determined that certain agency
officials lacked credibility based on inconsistencies in the testimony
of various agency personnel. The AJ noted that although appellant's
immediate supervisor (black) stated that she had no involvement in the
decision of the second level and third level reviewers (both white)
to upgrade the white comparative's appraisal, the second level and
third level reviewers both testified that the immediate supervisor
recommended the upgrade and had input in the upgrade decision. The AJ
also noted that the immediate supervisor testified that an employee in
the Logistics Division complained to her that he experienced difficulty
in getting along with appellant. However, this employee testified that
he only had one difficult situation with appellant, and that he never
mentioned the situation to appellant's immediate supervisor. Further,
the AJ stated that the immediate supervisor acknowledged that she did
not document the alleged incidents of appellant not getting along with
coworkers. The AJ deemed the lack of documentation to be an additional
factor in concluding that the explanation of appellant not getting along
with others was pretext intended to mask discriminatory motives.
With regard to appellant's allegation of harassment, the AJ determined
that the agency presented a legitimate, nondiscriminatory explanation
for the alleged incidents. The AJ observed that agency officials
testified that employees were being moved from place to place due to
a reorganization. The AJ found that none of the actions complained of
by appellant demonstrated a racial bias.
In a final decision dated November 13, 1997, the agency rejected
the findings and conclusions of the AJ, and entered a finding of no
discrimination. It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, including the
statements submitted on appeal, we find that the AJ's recommended decision
set forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. Nothing proffered by the agency in its
final decision or on appeal differs significantly from the arguments
presented at the hearing and given full consideration by the AJ.
As the AJ correctly noted, appellant's complaint constitutes a claim of
disparate treatment which is properly analyzed under the three-tiered
analytical framework outlined in McDonnell Douglas v. Green, 411 U.S. 792
(1973). See also, Cooper v. Federal Reserve Bank of Richmond, 467
U.S. 867 (1984); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-256 (1981). Applying this legal standard,
the AJ properly concluded that appellant established a prima facie case
of race discrimination. We further determine that the AJ properly
concluded that appellant failed to establish a prima facie case of
reprisal. Moreover, we find that the AJ was correct in further finding
that the agency produced a legitimate, nondiscriminatory reason for
the performance evaluation received by appellant and for the actions
that appellant alleged to constitute harassment. Further, we agree
with the AJ that appellant proved, by a preponderance of the evidence,
that the agency's articulated reasons for its actions with regard to
her performance appraisal lacked credibility and that its actions were
more likely motivated by discrimination. Finally, we agree with the
AJ that appellant failed to prove, by a preponderance of the evidence,
that the agency's articulated reasons for its actions with regard to the
alleged incidents of harassment lacked credibility and that its actions
were more likely motivated by discrimination. Nothing proffered by the
agency in its final decision or on appeal differs significantly from
the arguments raised before, and given full consideration by the AJ.
Accordingly, it is the decision of the the Equal Employment Opportunity
Commission to REVERSE that portion of the agency's final decision
which rejected the AJ's finding of race discrimination with regard
to appellant's performance evaluation. It is further the decision
of the Equal Employment Opportunity Commission to AFFIRM that portion
of the agency's final decision which accepted the AJ's findings of no
reprisal and no discrimination on the basis of race with regard to the
alleged incidents of harassment. In order to remedy appellant for its
discriminatory actions, the agency shall comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial actions:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to rescind the performance evaluation at
issue. The agency is to provide appellant with an objective performance
rating which will be determined when the rating official reviews with
appellant the work product that formed the basis for the rating, allows
appellant an opportunity to provide input with regard to management's
assessment of that work, discounts any claims of coworker friction or
inability to get along with coworkers which have not been documented
and presented to appellant, and allowed appellant an opportunity to
respond and thereafter been evaluated in terms of the attendant facts
and circumstances.
(B) The agency shall provide appellant an opportunity to document and
substantiate her claims of an entitlement to compensatory damages in
terms of any physical manifestations, out-of-pocket expenses, mental
and/or psychological or psychiatric care or treatment, and thereafter,
make an assessment of a proper and just award of compensatory damages.
(C) The agency is directed to provide to appellant back pay and
benefits for any demonstrated loss of pay or benefits arising out of or
that can be demonstrated to have been the result of the discrimination
found herein.
(D) The agency shall post at the Fort Bragg, North Carolina facility's
Fifth Brigade and its Directorate of Reserve Component Services
Operation copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty
(60) consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The agency shall
take reasonable steps to ensure that said notices are not altered,
defaced, or covered by other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled �Implementation of the Commission's Decision,�
within ten (10) calendar days of the expiration of the posting period.
(E) The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include evidence that the corrective action
has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by 29
C.F.R. �1614.501 (e) (1) (iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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:
August 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations 1The
record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant
appeal was timely filed.
2In her formal complaint, appellant alleged discrimination on the basis
of sex. However, she withdrew that basis during the investigation of
the complaint.
3The AJ found that appellant failed to establish a prima facie case
of reprisal discrimination because there was insufficient evidence to
support a finding that the agency officials responsible for appellant's
performance evaluation were aware of her prior EEO activity.