01975575
06-23-1999
Rose Simpson, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Rose Simpson, )
Appellant, )
) Appeal No. 01975575
v. ) Agency No. XL-95-031
) Hearing No. 160-69-8493X
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
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 bases of national origin (African
American), race (Black), color (light-skinned), sex (female), and age
(DOB 12/15/52), 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.
Appellant alleges she was discriminated against when: (1) on May 2,
1995, she was provided a performance rating of �Fully Successful� for the
period from April 1, 1994, to March 31, 1995; and (2) on April 12, 1995,
she was not promoted from the position of GS-11 Contract Administrator
to the position of GS-12 Cost/Price Analyst. 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 appellant, a GS-1102-11 Contract Administrator at
the agency's Defense Contract Management Command in Great Neck, New York
(facility), was assigned in April, 1994, to the Weapons Systems team
and was supervised by new first (S1) and second-line (S2) supervisors.
In April, 1995, a Cost/Price Analyst (W1) in the Business Management team
was non-competitively promoted from the GS-11 to the GS-12 level, while
appellant was not promoted to the position of GS-12 Cost/Price Analyst
within the Weapons Systems team. In May, 1995, S1 presented appellant
with a written performance appraisal covering the period of April 1,
1994, to March 31, 1995, which contained ratings of �4" on three critical
elements and ratings of �3" on two critical elements for an overall rating
of �Fully Successful.� In the previous year, appellant received a �Highly
Successful� rating, as she received a �4" rather than a �3" for oral and
written communications. Believing she was a victim of discrimination,
appellant sought EEO counseling and, subsequently, filed a formal
complaint on June 29, 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 initially concluded that appellant established a prima facie
case of discrimination on the above-stated bases regarding issue (1),
because appellant is a member of protected groups and received a �Fully
Successful� rating while several employees not in her protected groups
received higher ratings. The AJ, however, found that appellant failed to
establish a prima facie case of discrimination on any of the above-stated
bases regarding issue (2), as she failed to demonstrate that similarly
situated employees not in her protected classes were non-competitively
promoted when she was not promoted to the Cost/Price Analyst position.
In so finding, the AJ noted that appellant was not similarly situated to
W1 as they had different positions with different wage caps and each had
different supervisors. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions on issue (1),
namely, that S1 and S2 credibly testified that appellant's performance
merited the �Fully Successful� rating as she did not communicate well
with S1 or her co-workers and as she did not aggressively pursue contract
closeouts, both critical elements of her appraisal.<1> The AJ found
that appellant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The agency's FAD adopted the AJ's RD. Appellant makes no new contentions
on appeal, and the agency requests that we affirm the FAD.
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. We agree with the AJ that appellant
failed to establish that any of the agency's actions regarding issues
(1) and (2) were motivated by discriminatory animus toward appellant's
race, color, national origin, sex or age. We thus discern no basis to
disturb the AJ's findings of no discrimination which were based on a
detailed assessment of the record and the credibility of the witnesses.
See Gathers v. United States Postal Service, EEOC Request No. 05890894
(November 9, 1989); Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987);
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). 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 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 Appellant
conceded that she did not communicate with
S1 regarding her work, and that, although all
Contract Administrators are rated on the element
of contract closeouts, she was not pro-active in
pursuing contract closeouts as she has not been
responsible for doing them. Investigative Report,
Exhibit 1.