01A21215
03-25-2003
Partricia Hess, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Partricia Hess v. Department of Defense
01A21215
March 25, 2003
.
Partricia Hess,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A21215
Agency No. 01-DSADC-001
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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Supply Systems
Analyst at the agency's Mechanicsburg, Pennsylvania facility. Complainant
sought EEO counseling and subsequently filed a formal complaint on
October 12, 2000, alleging that she was discriminated against on the
bases of sex (female), age (over 40 years old), disability (Repetitive
Stress Syndrome, Carpal Tunnel Syndrome, neck strain, and tendinitis)
and in reprisal for prior EEO activity when:
(1a) Complainant's supervisors maintained a �secret file� regarding
matters relating to her employment in order to create a bias against her;
(1b) The �secret file� was used to preclude complainant's participation
in a Fellowship program offered in 1995, and the Defense Security
Assistance Management Systems (DSAMS) project in mid-1996;
(1c) Complainant was not selected for the following six positions:
�JOA 97-T-023, Supervisory Systems Analyst, GS-301-13
�JOA 97-T-108, Supervisory Systems Analyst, GS-301-13
�JOA 97-T-125, Program Analyst, GS-343-13
�JOA 98-T-083, Financial Systems Analyst, GS-501-13
�JOA 98-T-084, Supply Systems Analyst, GS-2001-13
�JOA 99-039, Program Analyst, GS-343-13;
(1d) Management and Human Resource Office (HRO) conspired to
intentionally delay processing of complainant's worker compensation
claims and denied payment thereof filed from September 1994 to the
present; and
(1e) On September 6, 2000, complainant received a close-out rating of
�Quality� for the performance period November 1, 1999 to July 15, 2000.
Complainant further alleged that the agency subjected her to
discrimination in reprisal for prior EEO activity when:
(2a) On April 4, 2001, the Human Resources Office provided a copy of
a work restriction evaluation form (OWCP-5) to her supervisor, which
prompted management to meet with complainant on April 20, 2001 about
the form;
(2b) The HRO contacted complainant's supervisor to try to force her to
come back to work fulltime; and
(2c) Complainant's Privacy Act rights were violated when the agency's
Labor and Employee Relations Department (HR-13) provided complainant's
secondline supervisor with a copy of a June 7, 2000 letter from the
Department of Labor.
At the conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing before an AJ, but subsequently withdrew
her request. On November 27, 2001, the agency issued a final decision
on complainant's complaint.
In its FAD, the agency concluded that complainant failed prove that she
was subjected to unlawful discrimination as alleged. Specifically,
the agency determined that complainant failed to prove a prima facie
case of discrimination for claim (1a) because the actions involved do
not evidence an intent to discriminate against complainant on the bases
of sex, disability, age, or reprisal. The FAD further determined that
the agency offered legitimate, nondiscriminatory reasons for its actions
that were not persuasively rebutted by complainant when it stated that the
file at issue was a standard supervisor's file that contained information
concerning employment issues, including workers' compensation documents.
Regarding claim (1b), the FAD found that complainant failed to establish
a prima facie case for this claim because complainant failed to present
any evidence that the information in the file was used to preclude
her participation in the Fellowship program or DSAMS project. The FAD
further concluded that selections for the Fellowship program were made
based solely upon the applications submitted and supervisory appraisals
and recommendations were not considered by the selecting official.
The FAD found that complainant failed to rebut the agency's proferred
legitimate, non-discriminatory reason for its action.
Regarding claim (1c), the FAD found that the agency articulated
legitimate, non-discriminatory reasons for not selecting complainant
for the six positions. Specifically, for JOA 97-T-023, the selecting
official stated that the criteria considered were supervisory/leadership
experience, EEO experience, knowledge and experience in foreign military
sales and the management information system for international logistics
and awards. The selecting official stated that the selectees had
�more depth of experience in all of these areas, they were deeper into
those particular criteria, had a greater number of years, for example,
involved in military foreign sales or had a broader range of experience
in the management information system for international logistics.� The
FAD found that complainant failed to rebut the agency's reason for its
selection for JOA-T-023.
With respect to JOA 97-T-108, agency management provided documentation
that the selectee had more specialized experience in automated
defense processing (ADP) and understanding of the Navy's Security
Assistance business environment, which corresponded closely to the
critical qualifications for the position. Regarding JOA 97-T-125,
agency management responded that the selectee had related experience
for this position, had higher performance ratings than complainant,
and possessed a bachelor's degree, while complainant did not.
Regarding JOA 98-T-083, the FAD noted that the agency responded that the
selectee had more extensive experience as a Financial Analyst as well as
possessed a bachelor's degree in Business Administration. With respect to
JOA 98-T-084, the FAD noted that the agency responded that complainant
was not selected for this position because she did not rank as high
as the selectees in the crucial factors of performance awards/ratings,
educational background, and experience. Finally, regarding JOA 99-039,
the agency responded that the selectee far exceeded other candidates with
regard to knowledge of the U.S. Security Assistance Program, knowledge
of the Defense Security Management System, and expertise in management
administration analysis and communications.
Regarding claim (1d), the agency found that complainant failed to
establish a prima facie case of sex, age, and disability discrimination
because she failed to present any evidence that persons not within
her protected classes were treated differently than she, or that she
was subjected to an adverse employment action. The FAD further found
that the agency presented legitimate, non-discriminatory reasons for its
actions that were not persuasively rebutted by complainant. Specifically,
employees of the HRO responded that complainant failed to properly send
her workers' compensation to the HRO office first. Instead, HRO stated
that complainant improperly sent the forms directly to OWCP, which only
delayed the process. The FAD further determined that the agency had no
role in denying complainant's claim with the OWCP.
Regarding claim (1e), the FAD found that management articulated
legitimate, nondiscriminatory reasons for its actions. Complainant's
supervisor responded that he rated complainant �Quality� because he
did not think her writing skills and documentation were at the expected
level for her position. Complainant's supervisor further responded that
complainant's weekly summary reports were �spotty� and rarely delivered
to him on time.
Regarding claims (2a) -( 2c), the FAD found that the agency failed
to establish a prima facie case of discrimination because she did
not present any evidence that an adverse employment action was taken
against her. The FAD further found that the agency proferred legitimate,
non-discriminatory reasons for its actions that were not persuasively
rebutted by complainant. With respect to claim 2a, the FAD noted that
the HRO's Injury Compensation Assistant responded that the OWCP-5 form
is a form that a physician completes that determines what job tasks an
employee can complete. The Injury Compensation Assistant stated that it
is her job duty to provide the OWCP-5 form to an employee's supervisor.
Regarding claim 2b, the HRO Injury Compensation Assistant reiterated that
she merely provided the information to complainant's supervisor and did
nothing to �force� complainant back to work. The FAD found that this was
a legitimate, non-discriminatory reason for the agency's actions that was
not persuasively rebutted by complainant as a pretext for discrimination.
Finally, regarding claim (2c), the FAD determined that the agency offered
legitimate, non-discriminatory reasons for its actions when it responded
that the letter from the Department of Labor denying complainant's workers
compensation claim was forwarded to complainant's firstline supervisor
for the purpose of updating him on the status of complainant's workers'
compensation claim. The agency maintains that even if the letter were
forwarded to complainant's secondline supervisor, it was proper since
he was also in complainant's chain-of-command. The FAD found that
complainant failed to prove that the agency's proferred reason for its
actions was a pretext for unlawful discrimination.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when, as in claims (1a) - (1e),
the agency has articulated legitimate, nondiscriminatory reasons for all
of its actions. See Washington v. Department of the Navy, EEOC Petition
No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from
whether the complainant has established a prima facie case to whether s/he
has demonstrated by a preponderance of the evidence that the agency's
reasons for its actions merely were a pretext for discrimination. Id.;
see also United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 714-717 (1983). Moreover, for the purpose of analysis,
we assume that complainant is a qualified individual with a disability.
Claim (1a)
The record contains copies of documents and notations made by
complainant's supervisors which complainant deems a �secret file.�
The file was initiated by complainant's former supervisor in 1994 and
contains documents pertaining to complainant's leave claims, workers'
compensation claims, and accommodation needs. We note that the record
reveals that there were voluminous amounts of paperwork and information
associated with complainant's worker's compensation claims, leave
requests, and accommodation requests. Moreover, many of these claims
and matters involved ongoing coordination and input from complainant's
supervisors, making her supervisors' argument that they maintained the
files for their personal use as a reference for addressing complainant's
many administrative issues persuasive. On appeal, complainant contends
that the file portrays her as �a malingering employee who is out to abuse
the federal compensation program.� However, we discern no discriminatory
animus nor intent in the contents of this file, which served a legitimate
administrative purpose. Consequently, we find that the agency articulated
legitimate, non-discriminatory reason for its actions that were not
persuasively rebutted by complainant as a pretext for discrimination.
Claim (1b)
Complainant contends that information from the �secret file� was used
to deny her selection for a Fellowship program the Defense Security
Assistance Management Systems (DSAMS) project.
However, the record contains an affidavit from the official who
coordinated the Fellowship program, received the applications, and gave
them to the selecting official. The official stated that only the
applications submitted by the candidates for the program were considered
by the selecting official, and no information from supervisors was used
in the selection. Regarding the DSAMS project, the agency responded
that the contents of the file were only seen and used by complainant's
immediate supervisors and were not divulged to the selecting official
for the DSAMS project. The Commission determines that complainant
failed to provide persuasive evidence that the agency's legitimate,
non-discriminatory reason for its action was a pretext for discrimination.
Consequently, we find no discrimination with respect to claim 1b.
Claim (1c)
In cases involving non-selection, pretext may be demonstrated in a
number of ways, including a showing that complainant's qualifications are
observably superior to those of the selectee(s). Bauer v. Bailar, 647
F.2d 1037, 1048 (10th Cir. 1981). However, an employer has the discretion
to choose among equally qualified candidates. Canham v. Oberlin College,
666 F.2d 1057, 1061 (6th Cir. 1981). In the instant case, we find
that complainant has presented no evidence that her qualifications were
"observably superior" or even equal to the individuals selected, with
respect to educational background, experience, and previous performance
ratings. Consequently, we find that the agency proferred legitimate,
non-discriminatory reasons for its selections that were not persuasively
rebutted by complainant.
Claim (1d)
Regarding the delayed processing of complainant's OWCP claim, the agency
responded that complainant improperly sent the forms directly to OWCP,
which delayed the process. Complainant failed to persuasively rebut
the agency's legitimate, non-discriminatory reason for its action.
Consequently, we find no discrimination with respect to this matter.
Complainant further contends that she was denied workers' compensation
payments filed from September 1994 to the present. The Commission
finds that, to the extent that claim (1d) challenges the denial of
complainant's OWCP claim, this matter constitutes a collateral attack on
the OWCP process and, as such, fails to state a cognizable claim. See
Reloj v. Department of Veterans Affairs, EEOC Request No. 05960545
(June 15, 1998). Moreover, the Commission has held that it is within
the OWCP's jurisdiction to determine whether a compensation claim with
OWCP has merit, and OWCP claims are not appealable to the EEOC. See Hogan
v. Department of the Army, EEOC Request No. 05940407 (September 29, 1994).
Therefore, we dismiss complainant's claim that her OWCP claim was denied
for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
Claim (1e)
Complainant contends that she was subjected to unlawful discrimination
when she received a �Quality� close-out rating for the performance
period November 1, 1999 to July 15, 2000. Complainant's supervisor
responded that the rating was warranted because complainant's summary
reports were rarely delivered on time and because he did not think
her writing skills and documentation were at the expected level for
her position. Complainant failed to rebut her supervisor's specific
reasons for the rating. Consequently, we find that the agency proferred
legitimate, non-discriminatory reasons for its actions that were not
rebutted by complainant as pretexts for discrimination. Consequently,
we find no discrimination with respect to claim (1e).
Claims (2a) - (2c)
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
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, 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) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or 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 25, 2000).
Regarding claims (2a) - (2c), assuming arguendo that complainant
established a prima facie case for each of her reprisal claims, the agency
articulated legitimate, nondiscriminatory reasons for its actions--as
described above--which complainant has failed to establish are merely
pretext for unlawful retaliation. The record contains no persuasive
evidence which establishes that the agency acted in reprisal with respect
to any of these matters. Consequently, we find no discrimination with
respect to claims (2a) - (2c).
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
__March 25, 2003_______________
Date