01973119
01-29-1999
Hena Bagchi, Appellant, v. James J. Hoecker, Chairman, Federal Energy Regulatory Commission, Agency.
Hena Bagchi v. Federal Energy Regulatory Commission
01973119
January 29, 1999
Hena Bagchi, )
Appellant, )
)
v. ) Appeal No. 01973119
) Agency No. EO95-008
James J. Hoecker, )
Chairman, )
Federal Energy Regulatory )
Commission, )
Agency. )
______________________________)
DECISION
Appellant timely filed an appeal to the Equal Employment Opportunity
Commission from the final decision of the agency concerning her complaint
of discrimination in violation of Title VII of the Civil Rights Act of
1964, 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.
The appeal is accepted by the Commission in accordance with the
provisions of EEOC Order No. 960.001.
In a complaint dated May 5, 1994, appellant alleged that the agency
discriminated against her on the bases of sex (female), race (Asian),
national origin (Indian), age (over 40), and reprisal (prior EEO
activity), when she received a Supervisory Appraisal of Potential
Performance (SAPP) from the agency for a position she applied for at the
Department of Energy (DOE).<1> The agency conducted an investigation and
provided appellant with a copy of the investigative report. The agency
issued its FAD on February 26, 1997, wherein it found that appellant
had established a prima facie case. However, it also found that it
had articulated legitimate, nondiscriminatory reasons for its action.
Finding that appellant had failed to prove pretext, the agency found
that appellant was not discriminated against, as alleged. It is from
this decision that appellant now appeals.
Appellant testified that she worked for the agency for eleven years
before her resignation in April 1990. Furthermore, she testified that
she resigned from the agency because of difficulties she had experienced
with her supervisors at the time. After receiving an "unacceptable"
rating on her 1989 performance appraisal, appellant and the agency
entered into a settlement agreement whereby in exchange for appellant's
resignation from the agency, the agency changed appellant's performance
appraisal to "fully successful," and removed a three-day suspension from
her personnel file.
On February 15, 1994, appellant applied for a Market Analyst, GS-12
position with the DOE under Vacancy Announcement No. 94-EE-423B.
Although a SAPP was attached to the vacancy announcement, appellant
failed to submit it with her application.<2> She was subsequently
contacted by an individual at the DOE personnel office, who requested
her SAPP. At appellant's request, DOE sent the SAPP to the Office of
Electric Power Regulation (OEPR) at the agency. The Director of the
OEPR received the SAPP and forwarded it to the Supervisory Financial
Analyst, Financial Analysis Branch (Analyst) of OEPR for its completion.
Appellant later learned that the Analyst rated her SAPP with two scores of
"above average," two scores of "satisfactory," and one score of "weak"
in the area of oral and written communication. Appellant subsequently
filed the instant complaint.
Appellant's complaint constitutes a claim of disparate treatment and
is properly analyzed under the three-part test delineated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981); Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976). Although this analysis
was developed in the context of Title VII, it is equally applicable
to claims brought under the ADEA with one important distinction.
Leob v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). In an ADEA case,
appellant is required to demonstrate that age was a determinative factor,
and not simply a factor as in a Title VII case, in the adverse employment
action. Id. at 1019.
Applying this legal standard to appellant's complaint, the Commission
finds that the agency successfully rebutted any initial inference
of discrimination raised by appellant by articulating a legitimate,
nondiscriminatory reason for the action at issue. Specifically, the
Analyst testified that he rated appellant accurately. With respect to
the communication element, the Analyst testified that appellant's oral
communication skills were not effective, and her written work usually
needed to be reworked and revised. He testified that appellant's
answers during testimony were not organized or responsive, and sometimes
unintelligible. Furthermore, he stated that he based this determination
on his observations of her during meetings, staff conferences, and
hearings. Further, he testified that he has known appellant for eleven
years.
Appellant testified that the rating was inaccurate because the Analyst had
previously rated her "Highly Satisfactory" in the area of communication
in 1984. She testified that the SAPP represents reprisal against her
because she filed an earlier EEO complaint against the Analyst in 1993,
after a vacancy she applied for was canceled.<3> Appellant also testified
that the Analyst failed to hire women, that appellant had been the only
Asian in the office, and that she was also the victim of discrimination
because of her age.
In response to appellant's contention that the SAPP was inconsistent
with the 1984 performance appraisal, the Analyst testified that he
signed the 1984 appraisal while in the capacity of Acting Branch Chief,
while the Branch Chief was in the hospital. The Analyst testified that
the appraisal was the Branch Chief's, and he signed it under the Branch
Chief's direction. Furthermore, he noted that since 1984, he had observed
other problems with appellant's performance.
Appellant testified in her affidavit and argues on appeal that she is
continuously blamed for her accent, even though others understand her.
However, after a careful review of the record, we find that the rating
of appellant's communication skills reflected both oral and written
areas, and the rating was not a pretext for intentional discrimination.
We note that appellant's own submissions on appeal detail problems
with her communication skills in both oral and written areas.
Specifically, appellant submitted performance appraisals from 1984
until her resignation, all of which note in some way that she had
some difficulty in her writing. Specifically, the appraisals mention
that she "sometimes needs to be reminded about grammar and syntax",
that she has difficulty in being "clear and concise in her [writing]",
that she "has some difficulty [in writing],... but shows improvement."
Although there is also mention that her oral communication skills were
also a problem, the Analyst testified that "he never spoke to appellant
about her accent," and he "certainly understood the words she [said],
[his] issue was with the content of what she was saying." Furthermore,
he added that it was the "syntax, content and grammar associated with
[appellant's] thoughts" which was hard to understand.
We find that the SAPP rating is supported by the record. Appellant has
failed to provide evidence, documentary or testimonial, indicating
that her communication skills merited a higher rating. Although she
provides some notes from past supervisors and others she has worked
with in her appeal brief, the majority of the notes neither mention her
communication skills in detail, nor do they overwhelmingly commend her
for those skills. Furthermore, the record contains no evidence indicating
that a discriminatory animus prompted this action.
After a careful review of the record, the Commission finds that
appellant failed to establish that the agency's reason for its action
was pretext for discrimination. Accordingly, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's finding
of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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 (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:
Jan 29, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant's complaint was initially dismissed by the agency for failure
to state a claim. That decision was later reversed and remanded to the
agency in EEOC Appeal No. 01945796. The agency subsequently filed a
Request for Reconsideration, which was denied.
2Appellant testified that her hesitance to supply a SAPP to the DOE
personally stemmed from her background with the agency.
3This allegation was the subject of an earlier complaint, which was
dismissed by the agency for failure to state a claim and for failing to
contact an EEO counselor in a timely manner. On appeal, the Office of
Federal Operations affirmed the agency's final decision in EEOC Appeal
NO. 01934467.