01970938
08-24-1999
Pamela Page, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.
Pamela Page v. Department of Defense
01970938
August 24, 1999
Pamela Page, )
Appellant, )
)
v. )
) Appeal No. 01970938
William S. Cohen, ) Agency No. C95-18
Secretary, )
Department of Defense, )
(Defense Contract Audit Agency), )
Agency. )
_________________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning her allegations that the agency discriminated against her
on the bases of her race (Black) and in reprisal for engaging in prior
EEO activity in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.<1> The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
For the reasons set forth below, we AFFIRM the FAD.
The issues presented are whether appellant proved that she was
discriminated against, as referenced above, when (1) on June 9, 1995,
management officials attempted to discredit her work performance
regarding Audit Report No. 3711-95A27000036; and (2) on June 12, 1995,
management officials refused to provide her with supervisory guidance
regarding Audit Report No. 3711-95A270000036. Appellant did not raise
any contentions on appeal.
On June 1, 1995, appellant, a GS-12 Auditor, responded to a telephone
inquiry from E-1, a Contract Negotiator at Wright Patterson Air Force
Base, Dayton, Ohio. E-1 questioned appellant about certain entries
that were contained in Audit Report No. 3711-95A270000036 (the report).
The Lead Auditor, C-1, had issued and prepared the report, but she
was not at work that day. Appellant, reviewing the report with E-1
over the telephone, indicated that there were several discrepancies
contained therein. Based on appellant's analysis, E-1 told her that she
wanted a supplemental audit report issued. She also asked appellant to
provide her with a written summary of the matters they had discussed.
That same day, appellant transmitted to E-1, by facsimile, a written
memorandum that summarized their earlier conversation. Appellant provided
copies of her memorandum to C-1, A-1, her immediate supervisor, and A-3,
the Branch Manager, GM-511-14.
On June 5, 1995, A-2, the Supervisory Auditor, GM-511-13, contacted
E-1 and spoke to her about appellant's comments regarding the report.
He told her that appellant was incorrect. On June 9, 1995, he drafted
a memorandum that was signed by A-3 that disavowed appellant's earlier
June 1, 1995 memorandum. The June 9 memorandum, which was sent to E-1,
was intended to be the agency's official position on the matter.
On June 12, 1995, appellant, who had been out of the office for about
a week, met with A-2. According to appellant, he told her that: (a)
she should have notified him or A-1 before she spoke to E-1 about the
alleged discrepancies; (b) she had to report to him, A-1 or A-3 before
she responded to any fact finding inquiry about an audit report; (c)
her judgment was wrong with regard to her comments about the report;<2>
(d) she should have let C-1 respond to E-1's questions; (e) her written
response to E-1 contained errors, but the report itself did not; and
(f) a supplemental report was not necessary.
On June 13, 1995, the appellant informed A-2 and A-3 that she
disagreed with their actions. She set forth her concerns and provided
an explanation for her actions. She also requested that A-2 provide her
with guidance on the proper administrative procedure for responding to
a Contracting Officer's inquiries. On June 26, 1995, she sent a second
memorandum to A-2 stating that she had not yet received a response to
her June 13, 1995 memorandum. She again asked that he provide her with
guidance about handling inquiries.
According to appellant, while under A-3's supervision, she has filed one
informal and four formal EEO complaints. These complaints date back
to 1993 and, in some aspect, involved A-2. Appellant also maintained
that she "[a]dministered excellent auditor's judgment" with regard to
her comments, both verbal and written, to E-1. In her opinion, she is
being punished because she is a black woman, who found out about a major
mistake committed by C-1, a white female. Appellant alleged that A-2 and
A-3 did not want C-1's mistakes to become known; therefore, they took the
above actions against her. By way of contrast, appellant indicated that
she was once "[h]eld up for public ridicule" when she mistakenly typed
"1993" instead of "1994," but that C-1 could make "a three million dollar
mistake."
According to A-3, A-2 showed him the memorandum that appellant had sent to
E-1. A-2 told him that the information was inaccurate. A-3 asked A-2 to
review the documentation and determine an appropriate response. He also
told A-2 to brief him on the results and to write a memorandum to E-1 in
order to correct any inaccuracies or misleading information contained in
appellant's memorandum. A-3 testified that he signed and issued the June
9, 1995 memorandum because appellant had provided incorrect information
to E-1 concerning a contract involving the United States Government.
Finally, A-3 acknowledged that he was aware of appellant's previous EEO
activity, because he was a witness in "a couple" of her cases.
According to A-2, he was shocked when he saw appellant's memorandum to
E-1. A-2, who was involved in the processing of the report, discovered
that appellant had not taken into account that non-discrete costs were not
included in the report. According to A-2's memorandum to E-1, the report
only addressed "[d]iscrete costs for specific costs elements as requested
by [name omitted]." A-2 also testified with regard to allegation (2).
He stated that appellant wanted to have a team meeting concerning
the report. Although A-2 agreed to have a staff meeting, he did not
want to focus on any particular audit report or any particular auditor.
Appellant refused his proposal and their meeting came to an end.
The Commission has reviewed the record and finds that the FAD addressed
the facts and correctly applied the appropriate regulations, policies
and laws. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.), affirmed, 545 F.2d 222 (1st Cir. 1976).
Employers generally have broad discretion to set policies and carry
out personnel decisions, and should not be second-guessed by reviewing
authorities absent evidence of unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). To that end,
we find the agency offered legitimate, nondiscriminatory reasons for
its actions and that appellant failed to establish pretext. Other than
her bare assertion that management's actions were based on her race and
previous EEO activity, appellant offered no persuasive evidence that
these matters played any role in the actions of A-2 and A-3.
Accordingly, we 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 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 (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:
August 24, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1At the conclusion of the agency's investigation, appellant initially
requested an administrative hearing before an EEOC Administrative Judge.
The record indicates, however, that she subsequently withdrew that
request.
2A-3 denied referring to appellant's judgment. According to his
testimony, he only mentioned the procedure that she followed.