01974591
06-29-1999
Margaret E. DeBow, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Margaret E. DeBow, )
Appellant, )
) Appeal No. 01974591
v. ) Agency No. DAY96AF002OE
) Hearing No. 220-96-5145X
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (Black), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges she was discriminated against when: (1)
on July 20, 1995, she received an annual performance appraisal rating
of �Fully Successful� with appraisal factor scores ranging from six to
eight; and (2) on or about July 20, 1995, she received a Contracting and
Manufacturing Civilian Career Program (CMCCP) Technical Appraisal, with
ratings of five (�Fully Successful�) and �P� (Presumptive, equivalent to
five). The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a GS-346-12 Logistics Management Specialist assigned to the agency's
Specialized Support Branch, Operations and Analysis Division, Directorate
of Process Management, Air Force Security Assistance Center. The record
reflects that on July 20, 1995, appellant's supervisor (AS), the Chief
of the Specialized Support Branch, provided appellant with an AF Form
860 A, Civilian Performance and Promotion Appraisal (CPPA) rating of
�Fully Successful�. AS rated appellant as exceeding the standard in
one critical and one noncritical element, and as meeting the standard
in the remaining eight critical elements and two noncritical elements.
In appraising appellant on the CPPA, AS testified that although appellant
was new to the branch, she met the requirements for a �Fully Successful�
rating, but several factors such as failure to follow instructions and
unwillingness to work with others in the branch impacted appellant's
ability to perform at a higher level.
Moreover, the record reflects that on July 20, 1995, AS rated
appellant on the CMCCP, Technical Appraisal, which consisted of a
managerial/supervisory section and a GS-1102 Contracting section. In
preparing this appraisal, AS stated that due to appellant's limited
experience in the Contracting career field, she received the �Presumptive�
rating (equivalent to �Fully Successful�) in twenty-seven evaluative
factors where appellant had not performed the relevant tasking or AS
could not make a reasonable decision as to appellant's abilities in
the taskings. She also received the equivalent of �Fully Successful�
in the other rating areas.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on September
21, 1995. At the conclusion of the investigation, appellant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding no discrimination.
The AJ found that as the agency presented evidence which would be
required if appellant had properly met her burden in establishing a
prima facie case of discrimination, she would proceed directly to the
ultimate question of discrimination vel non. As such, the AJ noted that
appellant's disagreement with AS's assessment of her performance on the
CPPA and CMCCP appraisals is not probative evidence of discrimination.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for the appraisals appellant received, namely,
that AS had the discretion to judge the performance of employees, and
appellant's ratings accurately reflected her job performance during the
period in question. In addition, the AJ found that appellant presented
no credible evidence that the agency's legitimate, nondiscriminatory
reasons for the ratings she received on either appraisal were a pretext
to mask illegal discrimination. The agency's FAD adopted the AJ's RD.
Neither party has made contentions on appeal.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Since the agency articulated
legitimate, nondiscriminatory reasons for its actions, the burden is
on appellant to show that the agency's reasons are a pretext to mask
race discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). Under Title VII, an employer has discretion to
judge the performance of employees, so long as the judgment is not based
on unlawful criteria. In the absence of such evidence, the Commission
will not second guess the acting supervisor's assessment of appellant's
performance. Cf. Burdine, at 259 (employer has discretion to choose among
equally qualified candidates for hiring or promotion). Appellant argues
that her appraisal does not reflect her very high level of performance.
We find, however, for the same reasons as the AJ, that appellant failed
to present evidence that any of the agency's actions were a pretext
for discrimination based on appellant's race. We thus discern no basis
to disturb the AJ's findings of no discrimination. Therefore, after a
careful review of the record and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
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:
June 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations