01964020
02-05-1999
Ramesh C. Rastogi, Appellant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.
Ramesh C. Rastogi v. United States Information Agency
01964020
February 5, 1999
Ramesh C. Rastogi, )
Appellant, )
)
v. ) Appeal No. 01964020
) Agency No. OCR-95-14,
Joseph D. Duffey, ) 0CR-95-14-1
Director, )
United States Information Agency, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the
agency concerning his allegation that the agency violated Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are whether appellant has established
that the agency discriminated against him based on reprisal (prior EEO
activity) when: (1) he received a rating of "Fully Successful" on his
1993-94 performance appraisal; and (2) he received a rating of "Fully
Successful" on his 1994-95 performance appraisal.
BACKGROUND
Appellant filed a formal complaint (Complaint 1) in July 1994 in
which he raised what has been identified as Issue 1. Following the
investigation of Complaint 1, which occurred in February 1995, appellant
did not request an administrative hearing. On June 19, 1995, appellant
presented the EEO Counselor with an informal complaint (Complaint 2)
in which he raised Issue 2. Rather than process Complaint 2, the agency
waived the EEO counseling process and proceeded to consolidate Complaint
2 with Complaint 1. The agency thereafter issued a final decision dated
April 9, 1996, in which it found no discrimination with regard to both
complaints.<0> It is from this decision that appellant now appeals.
During the period in question, appellant was employed as a General
Engineer in the agency's Bureau of Broadcasting. The record reveals that,
between 1987 and 1992, appellant had consistently received ratings of
"Highly Successful" on his performance appraisals. In 1992, appellant
came under the supervision of a new individual (the Responsible Official,
RO). Although the RO rated appellant "Highly Successful" on his 1992-93
appraisal, he subsequently lowered it to "Fully Successful" on appellant's
1993-94 and 1994-95 appraisals. Each of these appraisals contained five
elements, and appellant received the following ratings in these elements
("O" for Outstanding; "HS" for Highly Successful; and "FS" for Fully
Successful).<0>
Element 1992-93 1993-94 1994-95
1 HS HS FS
2 HS FS HS
3 O O FS
4 HS FS FS
5 HS HS HS
The RO explained that the reason he lowered appellant's rating to "Fully
Successful" on his 1993-94 appraisal was because he "saw less performance"
regarding appellant's ability to both speak and work on written documents.
In this regard, the RO stated that he had "witnessed a lessening of
[appellant's] communications skills."<0> The RO did not address the
rating he gave appellant on his 1994-95 appraisal.
Appellant's primary contention is that, although he had presented the
RO with a list of his accomplishments prior to the preparation of the
1993-94 appraisal, the RO had not taken them into account when rating him.
In response, the RO explained that he had considered appellant's comments
but noted that they did not justify the upgrade of his rating.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was a pretext for discri-mination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Issue 1
We find that appellant, to the extent he filed an EEO complaint in
late 1992 of which the RO was aware, is able to establish a prima
facie case based on reprisal. See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F.Supp. 318, aff'd, 545 F.2d 222 (1st
Cir. 1976). We also find, however, that the RO articulated a legitimate,
nondiscriminatory reason for rating appellant "Fully Successful" on his
1993-94 performance appraisal, i.e., that he witnessed a decrease in
appellant's communication skills. See Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 254 (1981).
At this point, appellant bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing
that the agency's proffered explanation is unworthy of credence. Id.
The Commission has carefully reviewed the agency's articulated reasons
and finds that appellant has not established pretext. In so finding,
we note that, although appellant clearly disagrees with the rating
in question, he has offered nothing which demonstrates that the RO's
testimony is either incredible or that his motivations were retaliatory.
Accordingly, the Commission finds appellant has not established reprisal
with regard to this issue.
Issue 2
As discussed, the agency decided not to investigate Complaint 2 because it
believed that it had been adequately addressed during the investigation of
Complaint 1. Assuming, arguendo, that the investigation had adequately
addressed Complaint 2, the agency was still required to give appellant
the opportunity to request a hearing with regard to that complaint.
In this regard, it is not apparent from the record that appellant
was ever afforded an opportunity to request a hearing with regard to
Complaint 2.<0> Notwithstanding this failure, however, the Commission,
for the reasons that follow and because appellant has not indicated that
he wants a hearing, shall address the merits of Complaint 2.
As was the case with Issue 1, the Commission finds that appellant has
established a prima facie case of reprisal with regard to Issue 2.
Although the complaint appellant filed in 1992 predated his receipt of
the 1994-95 appraisal by nearly three years, we note that the appraisal
was issued less than one year after appellant filed Complaint 1.
In considering whether the agency has articulated legitimate,
nondiscriminatory reasons, the Commission notes that, although the
burden of production is not onerous, the explanation must be sufficiently
clear and specific so that the complainant will have a full and fair
opportunity to demonstrate that it is a pretext for discrimination. See
Brooks v. United States Postal Service, EEOC Request No. 05930625 (May 19,
1994); Parker v. United States Postal Service, EEOC Request No. 05900110
(April 30, 1990). The Commission finds that the agency has not met this
burden. Initially, having reviewed the investigation of Complaint 1, the
Commission notes that it predated the issuance of the 1994-95 appraisal
by several months and, as such, does not address that appraisal.
Although the agency apparently believes that the explanation the RO
provided for the 1993-94 rating also explains the reasoning behind
the 1994-95 rating, the Commission disagrees. Specifically, although
both ratings are identical, there were significant differences in the
ratings appellant received in the individual elements. In particular,
after being rated "Highly Successful" on Element 1 on the 1992-93 and
1993-94 appraisals, appellant was rated "Fully Successful" in that
element on the 1994-95 appraisal. Additionally, although the RO had
given appellant ratings of "Outstanding" on Element 3 on the 1992-93 and
1993-94 appraisals, the rating in that element was dropped to "Fully
Successful" on the 1994-95 appraisal. Absent any testimony from the
RO addressing these differences, and because these differences were
directly responsible for appellant's rating remaining "Fully Successful,"
the Commission concludes that the RO's rationale for the 1993-94 rating
does not explain the reasoning behind the 1994-95 rating. Accordingly,
because the agency has not articulated legitimate, nondiscriminatory
reasons for the rating appellant received on his 1994-95 appraisal,
it has not rebutted his prima facie case of reprisal. Therefore, the
Commission finds appellant has established that the rating he received
on his 1994-95 appraisal was retaliatory.
In determining the appropriate relief, the Commission notes that appellant
has requested that the rating on his 1994-95 appraisal be upgraded to
"Outstanding." We find insufficient justification for such an action,
however, and note that, even before the RO began supervising appellant,
he had never received a rating that high. Therefore, it is not reasonable
to assume that, absent the discrimination, appellant would have received
a rating of "Outstanding." The Commission finds that, in light of
the agency's unexplained decision to downgrade appellant in Elements
1 and 3, his ratings in those elements should be restored to what they
were on his two previous appraisals. Because that would give appellant
ratings of "Highly Successful" or higher in all four critical elements,
it would upgrade his overall rating to "Highly Successful."
Additionally, although appellant did not explicitly request compensatory
damages in Complaint 2, he did request them with regard to Complaint 1.
For this reason, the Commission finds that the agency should clarify
whether appellant is requesting such damages with regard to Complaint 2.
If he is, then the agency shall conduct a supplemental investigation to
determine his entitlement to such damages.
CONCLUSION
It is the decision of the Commission to AFFIRM the agency's decision
finding no discrimination with regard to Issue 1; and to REVERSE the
agency's decision finding no discrimination with regard to Issue 2.
ORDER
1. The agency shall upgrade appellant's rating on his 1994-95 performance
appraisal to "Highly Successful" by upgrading his rating on Element 1
to "Highly Successful" and his rating on Element 3 to "Outstanding."
Additionally, the agency shall pay appellant a cash award in the event
other General Engineers who received ratings of "Highly Successful" on
their appraisals received cash awards.
2. The agency shall ascertain whether appellant is requesting compensatory
damages with regard to Complaint 2. If he is, the agency shall conduct
a supplemental investigation to determine whether he is entitled to such
damages, and shall allow appellant the opportunity to present evidence in
support of his compensatory damages claim.<0> Appellant shall cooperate
with the agency in this regard. Thereafter, the agency shall issue a
final decision. 29 C.F.R. �1614.110. The supplemental investigation
and issuance of the final decision must be completed within sixty (60)
calendar days of the date this decision becomes final. A copy of the
final decision must be submitted to the Compliance Officer, as referenced
below.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Bureau of Broadcasting, Office
of Engineering, Washington, D.C., 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 any 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.
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 (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.
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.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
February 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _________ which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The United States Information Agency, Bureau of Broadcasting, Office
of Engineering, Washington, D.C., supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The United States Information Agency, Bureau of Broadcasting, Office of
Engineering, Washington, D.C., has been found to have discriminated
against an employee with regard to the rating he received on his
performance appraisal and has been ordered to upgrade the rating.
The United States Information Agency, Bureau of Broadcasting, Office of
Engineering, Washington, D.C., will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The United States Information Agency, Bureau of Broadcasting, Office
of Engineering, Washington, D.C., will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
_____________________________
Date Posted: _____________________
Posting Expires: __________________
29 C.F.R. Part 1614
01 A letter from the agency to this office dated November 1, 1998,
states that, in making the decision not to investigate Complaint 2,
the agency had determined that there was sufficient evidence obtained
during the investigation of Complaint 1 to address the allegation in
Complaint 2.
02 To receive an overall rating of "Highly Successful," an individual
is required to receive ratings of "Highly Successful" or higher in all
four critical elements. Elements 1, 2, 3, and 5 are critical while
Element 4 is noncritical.
03 We note that Elements 2 (application of appropriate levels
of technical expertise and guidance to project activities) and 4
(communication skills) both involved appellant's ability to communicate.
Appellant received ratings of "Fully Successful" in both elements.
03 The agency may have assumed that appellant did not want a
hearing because he had not requested one following the investigation of
Complaint 1. Such an assumption, if made, was clearly improper. See 29
C.F.R. �1614.108(f).
04 In order to assess the claim, the agency shall request from
appellant evidence of and testimony establishing any pecuniary and
non-pecuniary injury suffered and its link to the agency's retaliatory
actions. See Feris v. Environmental Protection Agency, EEOC Appeal
No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request
No. 05950936 (July 19, 1996); Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993); Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994).