Lorraine Webber, Appellant, v. Dr. Louis W. Sullivan, Secretary, Department of Health and Human Services, Agency. Appeal No. 01900902 Agency No. HRS 349-88 Hearing No. 033-89-9221X February 28, 1990 DECISION INTRODUCTION On December 14, 1989, Lorraine Webber (hereinafter referred to as appellant) initiated an appeal to the Equal Employment Opportunity Commission (EEOC) from the final decision of the Secretary, Department of Health and Human Services (hereinafter referred to as the agency) issued on November 14, 1989, on her equal employment opportunity complaint. Appellant alleged that she was discriminated against because of her age (56) and reprisal for prior EEO complaints in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. 621 et seq. The appeal is accepted for decision by the Commission in accordance with the provisions of EEOC Order No. 960, as amended. ISSUES PRESENTED The issues presented herein are whether appellant was subjected to discrimination based on her age (56) and/or reprisal for prior EEO complaints when: (1) she was evaluated as 'fully satisfactory' on a performance appraisal and (b) she was not awarded 'recognition' in the form of quality step increases, within grade increases or cash awards. BACKGROUND On March 19, 1988, appellant, a GS-7 employee, sought EEO counseling and alleged that she had been subjected to discrimination on the bases of her age (56) and reprisal for her prior EEO complaints when she was issued a Performance Appraisal for the fiscal year 1987 ('FY 87') which evaluated her performance as 'fully satisfactory'. Appellant's previous evaluations for FY 86 and FY 85 had evaluated her performance as 'excellent'. Appellant further complained to the EEO Counselor that she had been denied the 'recognition' given other employees, such as quality step increases, cash awards, and within grade increases. As relief, appellant sought reinstatement to the GS-8 level. Appellant's prior service as a GS-8 is discussed below. Appellant's formal EEO complaint, filed in May 1988, also raised her Performance Appraisal for FY 87 and her failure to receive recognition in the form of increases and cash awards. In June 1988, the agency accepted for investigation the issues of whether appellant had been subjected to age discrimination and/or reprisal when she received a lower evaluation on her Performance Appraisal for FY 87 than she had for FY 86 ad FY 85 and when she was 'denied recognition given her female coworker similarly situated'. Appellant did not object to the agency's statement of the issues in her complaint. Further, appellant's affidavit taken by the EEO Investigator in August 1988 raised only these issues, although appellant again requested placement in a GS-8 position as relief for the alleged discrimination. The record indicates that, in June 1983, appellant was downgraded from a GS-8, Step 8 to a GS-7, Step 10 as a result of a reduction-in-force ('RIF'). The record further indicates that appellant filed at least one prior EEO complaint regarding the agency's 'failure to promote' her back into a GS-8 position, but that appellant 'withdrew the first complaint'. H.T. at 10, 11. The Report of Investigation ('ROI') indicates that during an informal resolution conference held in December 1988, appellant and her attorneys raised her prior downgrade and her entitlement to priority consideration as a result. The EEO Investigator advised appellant that he would address only the issues accepted in her instant complaint and that the 'other issues will be considered in another case (appellant) has pending'. ROI at 3. After receiving a proposed disposition finding no discrimination, appellant requested a hearing before an EEOC Administrative Judge ('AJ'). At the hearing, appellant's counsel argued that her instant complaint 'contains allegations of her being denied reinstatement and/or promotion to the GS-8 (level)', since the 'broad, general characterization of not having (received) the economic recognition of persons similarly employed' would include the allegation that she was the only employee downgraded in the RIF who had not subsequently achieved her prior grade level. While acknowledging that no such contention could be found in the EEO Counselor's Report, the formal complaint or the affidavit taken in August 1988, it was argued that since appellant 'is a secretary' who 'related' her 'plight' to the EEO Investigator, the agency should have investigated her failure to achieve a GS-8 position since the RIF in 1983. See H.T. 4-12. The AJ ruled that the issue of whether appellant 'was discriminated against when she was not reinstated or promoted to (a) GS-8 position is not an issue in this case.' H.T. at 11. Accordingly, the hearing was limited to the two issues set forth above. With respect to appellant's evaluation for FY 87, the record reflects that FY 87 was the first year the new Employee Performance Management System ('EPMS') was effective. The EPMS was intended to reduce the latitude of persons rating performance by the imposition of clearer, more demanding standards. In this regard, the record reflects that, during FY 86, 90% of relevant agency employees had been evaluated as either 'outstanding' or 'excellent'. The agency's Administrator had issued a memorandum instructing all managers that 'fully satisfactory' was a commendable rating and that he expected more employees to receive 'fully satisfactory' ratings under the new EPMS. With respect to appellant's division, the record establishes that seven out of the eight employees in clerical positions like appellant's were over age 40 and that six of the eight employees received lower performance evaluations in FY 87 under the EPMS than they had in FY 86 or FY 85. The only employees not receiving lower evaluations were age 41 and 57. With respect to appellant's failure to receive recognition, the AJ noted that appellant could establish a prima facie case by showing either that she was entitled to the benefits which were denied while other employees outside her protected classes received the benefits or that, while she was not entitled to the benefits, other similarly situated persons outside her protected classes who were also not entitled to the benefits nonetheless received them. The record establishes that appellant conceded that she was not entitled to either quality step increases or within grade increases because she had reached the highest step of the GS-7 level. Further, the record establishes that only one person had received a cash award from FY 85 through FY 87, that this person was age 57, and that she had been evaluated as 'outstanding' in FY 85, FY 86 and FY 87. The record reflects that no employee who had reached the highest step received a quality step increase or a within grade increase, and that no employee evaluated as less than 'outstanding' received a cash award. In his recommended decision, the AJ found that appellant failed to establish a prima facie case of age discrimination in that (a) six of the eight clerical employees in appellant's division, including the only employee outside the protected age class, had received lower evaluations in FY 87 whereas both the employees receiving the same evaluations were in the protected age class and one was older than appellant and (b) no employee at the highest step had received a quality step increase or a within grade increase and the only employee receiving a cash award was older than appellant. The AJ found that appellant had, however, established a prima facie case of reprisal in that relevant agency officials were aware of her prior EEO complaints and that the actions complained of occurred within a year of the filing of a complaint. The AJ further found that the agency had offered legitimate nondiscriminatory reasons for its actions and that appellant failed to prove that the proffered reasons were a pretext for discrimination. Accordingly, the recommended decision found no discrimination or reprisal. In its final decision, the agency adopted the AJ's recommended decision. Appellant timely appeals. In her appeal, appellant complains that she 'is the only secretary at (the agency), and probably the only person at (the agency) who lost a grade through the RIF ... who has failed to regain the lost grade' and that her appraisal for FY 87 'was part of a continuing violation (of) failure to properly evaluate her performance and failure to restore her GS-8 grade'. Accordingly, she seeks a 'new hearing that would enlarge the scope of the hearing'. Appellant further asserts that 'the larger and major case ... has never been addressed'; in this regard, she attaches the agency's acceptance of a prior formal EEO complaint filed in November 1987 (Agency No. HRS 42-88) alleging discrimination in the issuance of 'a negative memorandum, on September 9, 1987, regarding her being downgraded'. Finally, appellant complains that the AJ's reliance on evidence showing the treatment of the eight secretaries in appellant's division was 'far too small (a pool of statistics) to sustain the (a)gency's position that (it) had used a new and more difficult evaluation system' and that agency-wide statistics should have been used. The agency has not filed comments on the appeal. ANALYSIS AND FINDINGS The Commission first notes that it finds no error in either the EEO Investigator's or the AJ's interpretation of the issues raised in the complaint. The Commission does not believe that appellant's expressed desire to be placed in a GS-8 position renders any allegation regarding her failure to earlier secure such a position an allegation concerning 'unlawful employment practices which are like or related to the charge filed'. Sanchez v. Standard Brands, 431 F.2d 455 (5th Cir. 1971). Appellant's instant complaint raised only the issues accepted by the agency concerning her Performance Appraisal for FY 87 and her failure to receive 'recognition' in the form of quality and step increases and cash awards. Any challenge regarding the agency's failure to select her for a GS-8 position involves very different issues. [FN1] If appellant wishes to pursue such a challenge, and has not yet done so, she is advised to seek EEO counseling and file a complaint specifically raising any allegations regarding her failure to obtain a GS-8 position. [FN2] The Commission further notes that it does not agree with appellant's contention on appeal that the AJ should have focused on the effect introduction of the EPMS had on evaluations for the entire agency. It appears that appellant worked for the 'Executive Office' or 'the Office of the Administrator' (H.T. at 24, 25), which took very seriously the Administrator's professed goal of restoring meaning to evaluations of 'fully satisfactory'. The fact that other divisions may not have embraced the goal as enthusiastically is not highly probative with respect to appellant's allegation that her evaluation was reduced because of her age and/or reprisal. The proper comparative employees were those looked at by the AJ, i.e., appellant's seven coworkers. After a careful review of the record, and even assuming that appellant established a prima facie case of age discrimination as well as reprisal, the Commission finds that appellant failed to prove by a preponderance of the evidence that the agency's articulated legitimate reasons for its actions were unworthy of credence or otherwise a pretext for discrimination. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Cuddy v. Carmen, 694 F.2d 853 (D.C. Cir. 1982); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Ma. 1976), aff'd 545 F.2d 222 (1st Cir. 1976). Accordingly, the Commission finds that appellant was not subjected to discrimination when her performance for FY 87 was evaluated as 'fully satisfactory', when the agency failed to grant her a cash award as was given the coworker who was evaluated as 'outstanding' and when the agency failed to grant her quality step or within grade increases to which appellant was not entitled by virtue of having obtained the highest step on the GS-7 ladder. CONCLUSION For the reason set forth above, the Commission AFFIRMS the final agency decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RIGHT TO REQUEST REOPENING This decision is final unless a timely request to reopen is filed. The Commissioners may, in their discretion, reopen and reconsider the decision in this case if you or the agency submits a written request and argument 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 involves an erroneous interpretation of law or regulation or misapplication of established policy; or 3. The previous decision is of a precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners. Requests and supporting arguments MUST be submitted to the Commission and the opposing party within the 30-day time frame for filing a request to reopen. A cross request to reopen, or any argument in opposition to the request to reopen, MUST be submitted to the Commission and the opposing party within 20 days of receipt of the request to reopen. See 29 C.F.R. 1613.235. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Review and Appeals, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a postmark, the request to reopen shall be deemed filed on the date it is received by the Commission. RIGHT TO FILE A CIVIL ACTION You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision, unless within that time you decide to file a request to reopen. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued. See Lehman v. Nakshian 453 U.S. 156 (1981); 29 U.S.C. 633a(f); and 28 U.S.C. 2401(a). If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT. Agency or department means the national organization, and not the local office facility or department in which you might work. DO NOT NAME JUST THE AGENCY OR DEPARTMENT. You must also state the official title of the agency head or department head. Failure to provide the NAME OR OFFICIAL TITLE of the agency head or department head may result in the dismissal of your case. RIGHT TO COUNSEL 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 civil action without payment of fees, costs or security. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as amended; the Rehabilitation Act of 1973, 29 U.S.C. 791, 794(c), as amended. 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 THIRTY (30) DAYS from the date you receive the Commission's decision. FOR THE COMMISSION: Dolores L. Rozzi Director Office of Federal Operations [FN1]. For example, it appears appellant's entitlement to placement on the 'stopper list' for any position she qualified for expired sometime in 1985. Appellant thereafter was required to apply for and compete with other employees for available positions. It does not appear that appellant filed an EEO complaint regarding her failure to be selected for any particular position. [FN2]. From the record before the Commission, it cannot be discerned whether any previously filed complaint raised such allegations. While the question is not directly before the Commission, it is noted that appellant's November 1987 complaint concerning a 'negative memorandum' issued in September 1987 also does not appear to raise allegations regarding her failure to achieve a GS-8 position since 1983. From the record before the Commission, the Commission cannot determine the status of the November 1987 complaint attached to her appeal. That complaint may be in processing by the agency or it could be the prior complaint which appellant stated had been withdrawn. Appellant is advised to contact an EEO Counselor to learn the status of her November 1987 complaint.