Cynthia A. Thomas, Appellant,
v.
Warren M. Christopher, Secretary, Department of State, Agency.

Appeal No. 01932717
Agency No. 90-06

INTRODUCTION

On May 5, 1993, Cynthia A. Thomas (hereinafter referred to as appellant) timely filed an appeal to the Equal Employment Opportunity Commission (EEOC) from the final decision of the Department of State, which was received by appellant's representative on April 15, 1993. Appellant alleged that the agency discriminated against her on the basis of sex, and in reprisal when the agency failed to provide her with a 'low-ranking statement' regarding her performance. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000eetseq. We accept appellant's appeal pursuant to EEOC Order No. 960, as amended.

For the reasons that follow, the agency's decision is AFFIRMED in part and REVERSED in part.

ISSUE PRESENTED

Whether the agency discriminated against appellant on the basis of sex (female) or retaliated against her (for participation in the EEO process) by failing to provide her with the low-ranking statement regarding her performance that was issued by a Selection Board in 1985.

BACKGROUND

During the period relevant to this complaint, appellant was a member of the Foreign Service, classified at the FP-3 level. She served at this level from the time she entered the Foreign Service in 1971, and was never promoted.

In 1989, appellant learned that a 1985 Selection Board had given her a 'low-ranking.' The record indicates that agency Selection Boards met regularly to assess the performance and potential of all members of the Foreign Service in a particular class or group.

Their reviews were based on performance records including the performance evaluations given by the employees' supervisors. The Boards recommended some in a class for promotion, and others to a Performance Standards Board for consideration for 'selection out' of the Service. For some of the others falling between these two categories, Boards prepared low-ranking statements. According to a member of the 1985 Board considering appellant, a low-ranking statement was

for the sole purpose of informing the employee that his/her official performance file is weak in comparison to that of other officers at the same grade, and to point to performance areas documented in the employee's file which must be improved for the individual to become more competitive.

Regulations in effect in 1985 required that the employee was to receive the low-ranking statement.1 Appellant did not receive her statement following the Board's review in 1985, and did not become aware of the low ranking until 1989, when she asked to see her score card on which annual ratings were entered.

Appellant contacted an EEO Counselor on April 11, 1989 regarding the matter. In April 1990, she filed a formal complaint which the agency received on April 10, 1990. Appellant alleged that the agency failed to apprise her of her low ranking in retaliation for her participation as a witness in a 1984 EEO investigation of the complaints of three black Foreign Service Officers. She asserted that the low-ranking statement was not part of her personnel file, and that she had no knowledge of it until 1989. Appellant alleged that the failure to inform her of the low ranking was highly prejudicial to her. As corrective action, she sought a promotion retroactive to 1985. Appellant later amended her requested corrective action, asking instead for a four-year extension of her 'time-in-class' to reflect the period of time that her low-ranking statement was withheld. The record indicates that employees are removed from the Service if they are not promoted after 15 years in their class.

In her complaint, appellant stated her wish to re-open an earlier EEO complaint of sex discrimination and reprisal which she had filed in 1985, and to add the new allegation to that complaint. In that complaint as well as the instant one, appellant had alleged reprisal for her involvement in the 1984 EEO investigation. The agency and appellant had settled the earlier complaint in 1987. The agency refused to re-open the earlier complaint. However, the agency accepted the complaint regarding the low-ranking statement, and in doing so added the basis of sex discrimination. The agency investigation of the complaint included inquiries into whether appellant's sex, her prior EEO participation, or her prior EEO complaint, were factors in the agency's failure to give her the low-ranking statement.

The most important evidence gleaned in the investigation came from the Career Development Officer (CDO) who was assigned to provide career counseling to appellant in 1989. The CDO provided an investigative affidavit which chronicled her efforts to find out why appellant had never received the low-ranking statement. According to members of the Board that had issued the statement, the responsibility for notifying employees rested with the Bureau of Personnel's Office of Performance Evaluation (PER/PE). The official who was Director of PER/PE in 1985 confirmed this in her affidavit. The CDO averred that she spoke with 'someone' in the PER/PE, who told her that it had been believed that for appellant to receive a low-ranking statement so soon after her involvement in 'an administrative matter' would 'cause her distress.' Appellant recalled that the CDO told her that the statement was withheld because 'it would make [appellant] mad.' There is no indication in the record of any administrative matter other than appellant's prior EEO participation. The CDO could not recall the name of the person in PER/PE who made the comment.

The investigation yielded no other information to indicate who was responsible for the failure to send appellant the statement, or the reasons why it was not sent. Affidavits, all of which stated a lack of knowledge, were provided by the Senior Deputy Assistant Secretary of State for Personnel in 1989, the Director of PER/PE, and the Director of the Political Counseling Division in 1985. The Director of PER/PE speculated that the failure to provide the statement to appellant was inadvertent human error. One of the CDO's who counseled appellant in 1985 did not recall giving the statement to appellant or discussing it with her, but he did recall discussing its substance with her, including the comments regarding her weakness in drafting documents.

Asked what effect the withholding of the statement would have on appellant, the CDO stated that appellant would have missed the opportunity to correct the deficiencies stated therein. In response to the same question, the Senior Deputy Assistant Secretary averred that appellant would have lost the opportunity to file a grievance on the matter.

Affidavits show that some officials of the Bureau of Personnel were aware of appellant's prior EEO activity. The Senior Deputy Assistant Secretary, and the two CDO's who were appellant's career counselors in 1985, stated that they were aware of her prior EEO complaint.2 

The CDO who counseled appellant in 1989 stated that during her tenure as CDO, she knew of one other employee, a male, who was not notified of a low-ranking statement. The investigative file contains an affidavit from a male Foreign Service Officer averring that he was not given a low-ranking statement in mid-1987, and was not aware of it until meeting with his CDO in December 1987.

Following the investigation, appellant requested a final agency decision without a hearing. On April 9, 1993, the agency issued a final agency decision (FAD) which found no discrimination on the basis of sex, and no retaliation. On the grounds that the only other identified officer not informed of a low-ranking statement was a male, the agency found that appellant failed to establish a primafacie case of sex discrimination. Regarding her retaliation claim, the FAD noted that appellant had played a 'central and highly visible role' in supporting the EEO complaints of several black Foreign Service Officers in 1984. The FAD acknowledged that 'the PER/PE staff may have withheld from Complainant her low ranking status and counseling statement because she recently had been prominently figured in several EEO complaints brought by others and herself.' (Emphasis in the original.) However, because the PER/PE explanation was hearsay from an unidentified source, the agency concluded that the evidence was too imprecise to sustain an inference of retaliation. The agency went on to find that even assuming that retaliation occurred, appellant had suffered no injury warranting remedial action. Even if appellant were prejudiced, the agency stated, the evidence is insufficient to find that the prejudice survived for three years after she received the low-ranking statement. Also in the FAD was the information that appellant was scheduled to be involuntarily retired from the Service in March 1993, pursuant to the agency's 'up-or-out' time-in-class policy.

Appellant has appealed the FAD. She contests the finding that she was not the victim of retaliation, and argues her entitlement to corrective action. Appellant argues that the comment of the unidentified PER/PE employee constitutes direct evidence of retaliation and must be considered even though it is hearsay. She argues that since the evidence was reliable and uncontradicted by other evidence, she has established that she was retaliated against. The appropriate remedy, she contends, is a four-year extension of her time-in-class, in order to provide her with the opportunity to improve in the areas suggested in the low-ranking statement.

The agency in opposition relies on its FAD.

ANALYSIS AND FINDINGS

Appellant has not appealed the agency's finding of no discrimination on the basis of sex. After reviewing the record, we agree with this finding of the agency, and will not address it further.

Regarding the retaliation claim, both parties rely on the probative value of the statement of the unidentified personnel official, with the agency minimizing its evidentiary value to reach the findings in the FAD, and appellant contending that it is dispositive because it is direct evidence. The Commission agrees with appellant.

Direct evidence is an action or statement of an employer which reflects a discriminatory or retaliatory attitude, and which correlates to the challenged act. See Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990). Once the trier of fact has accepted the direct evidence, liability is established. EEOC Policy Guidance on Recent Developments in Disparate Treatment Theory, No. 915.002, July 14, 1992, Section III. The Commission concludes that the comment of the unidentified personnel official, at issue here, constitutes direct evidence.3 The comment on its face shows that the low-ranking statement was withheld because of appellant's involvement in an 'administrative matter.' That causal relationship is precisely what is prohibited by Section 704(a) of Title VII, which prohibits taking adverse employment actions against an individual 'because' of opposition to discrimination or participation in the EEO process. As noted above, the agency does not contend or show that the administrative matter was anything other than appellant's prior EEO activity, and indeed in its FAD noted her highly visible role in the 1984 EEO investigation. We infer that the administrative matter referred to was appellant's prior EEO activity.4 Since the comment explicitly states a link between the administrative matter and the withholding of the low-ranking statement, the comment is direct evidence.5 

Appellant persuasively argues that the fact that the comment is hearsay does not detract from its evidentiary value. She cites to Hoska v. United States Dept. of the Army, 677 F.2d 131 (D.C. Cir. 1982) in support of the admissibility of hearsay in administrative proceedings. The Court in Hoska states that under certain circumstances, hearsay can constitute substantial evidence, 677 F.2d at 138, and cites to several cases for the standards determining its acceptability. For example, in Calhoun v. Bailar, 626 F.2d 145, 149 (9th Cir. 1980), the tests are whether the hearsay is probative and bears indicia of reliability. We agree with appellant that the comment is relevant and material. We also agree that the comment bears sufficient indicia of reliability as suggested by Calhoun: Because the CDO reporting the comment was removed from the withholding action by both time and office, and any bias she may have would more likely be in favor of the agency than of appellant, she may be viewed as a disinterested witness; the CDO provided a sworn affidavit; and her testimony is not contradicted by any other evidence. In that regard, we note that the agency in its investigation could have, but did not, canvas employees then in PER/PE to verify or rebut the truth of the reported comment. We conclude therefore that the reported comment is substantial and probative evidence, and find that the FAD was in error on this point. The Commission finds that appellant has shown that the agency retaliated against her for her participation in EEO activity.

Because appellant was the victim of retaliation, she is eligible for appropriate remedial relief.6 The purpose of remedial action under Title VII is to make appellant whole and to place her in the position she would have been in absent discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The elements of relief that are appropriate in this case include, at a minimum, the posting of a notice in the facility and a commitment on the part of the agency that such violations will not recur. 29 C.F.R. §1614.501. The regulation also requires appropriate individual relief for the appellant and a presumption of entitlement to attorney's fees. The latter two elements we discuss below.

Individual Relief

Appellant contends that since she was denied the opportunity for four years to improve her performance to a promotion level, she is entitled to a four-year extension of her time-in-class. She points to 29 C.F.R. §1614.501(c)(5), which provides as part of appropriate relief the 'Full opportunity to participate in the employee benefit denied...' For its part, the agency in its FAD maintains that appellant suffered no actual injury warranting an extension in her time-in-class. The agency reasons that appellant knew of raters' concerns with her performance, from the several years' performance ratings on which the low-ranking statement was based, but was not promoted in the years prior to 1985. In addition, the agency notes that Selection Boards after 1985 did not issue appellant low-ranking statements.

The Commission has decided that appellant has already received the full opportunity to improve that would constitute appropriate individual relief. Appellant is complaining that for four years she was denied a specific document which identified improvements needed in her performance. However, the record bears out the agency's contention that during those four years, appellant knew of her shortcomings from other sources. While the denied document was prepared by the Selection Board, and was therefore a more authoritative assessment of her chances for promotion than were her performance ratings, it nonetheless was formulated on the basis of those same ratings. In addition, appellant's CDO recalled discussing the substance of the low ranking statement with appellant. Thus, the deficiencies set out in the denied low ranking statement were already known to appellant. In such circumstances, granting appellant an additional four years to improve would be an excessive remedy.

Moreover, appellant has received at least a two-year, and perhaps up to four-year, opportunity period already. Appellant received the low-ranking statement in April 1989, and continued to be employed for four years thereafter. Computation of the opportunity period should not disregard the period already past in which appellant had the opportunity to improve. In determining the scope of relief, present facts rather than the facts obtaining on the date of the retaliation may be considered. Cf., Farbar v. Massillon Board of Education, 917 F.2d 1391, 1396 (6th Cir. 1990).Seealso, Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). The agency states that after appellant received the statement in 1989 she had three annual rating cycles in which to improve, but was not promoted. Appellant asserts that she had only two, as her final consideration for promotion occurred in 1991. We note that the record provides no evidence on this subject. Whichever version is accurate, the fact remains that appellant had an opportunity to improve for a period of years after her receipt of the low ranking statement.

Furthermore, appellant was not promoted during these years. While appellant argues that her failure to be promoted after 1989 could have been due to many reasons, we think this argument misses the point. It is true as appellant argues that her post-1989 nonpromotions are not direct proof of her pre-1989 promotion potential. However, the question here is whether a remedy should be directed, and that remedy must perforce take place after 1989. Thus, we are persuaded by appellant's failure to be promoted after 1989. The Commission finds that appellant has been afforded an adequate opportunity to improve her performance.

In addition, the record suggests that the agency has already extended appellant's time-in-class. As noted above, appellant states that Foreign Service members are retired from the service after 15 years time-in-class if they have not been promoted. Appellant served at the same level for 22 years. There is also an indication that appellant's employment was extended during the period following her receipt of the low-ranking statement; at two points in the record are references to a retirement date of December 1991, yet appellant was not retired until 1993. Unfortunately, the agency has provided no explanation for the apparent extension of appellant's employment.

Under these circumstances, an extension of time-in-class goes beyond the bounds of appropriate remedy. Such an extension would provide appellant with a longer period than is proper under remedy principles, a result which would create a windfall for appellant. It would also constitute a windfall because it would provide appellant with an additional period of employment, a remedy which by itself is not appropriate for the wrong done here.

The Commission finds that appellant is not entitled to any individual relief, other than that already afforded by the agency during the pendency of this complaint.

Attorney's Fees
Our finding of retaliation raises a presumption of entitlement to attorney's fees. 29 C.F.R. §1614.501(e). The Commission finds entitlement to attorney's fees only when the appellant is determined to be a 'prevailing party.' In order to determine prevailing party status, the Commission has long applied the standards of Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), which ruled that a party prevails if succeeding on any significant issue which achieves some of the benefits sought in bringing suit. In a decision just issued, the Commission addressed the U.S. Supreme Court's more recent explications of the term 'prevailing party.' Charles S. Lopez, Ira J. Whiteley v. Sheila E. Widnall, Secretary, Department of the Air Force, EEOC Petition No. 03930021 (April 7, 1994).

All four of the recent Supreme Court opinions emphasize that a plaintiff cannot be deemed a prevailing party unless the success changes the behavior of the defendant towards the plaintiff. In Hewitt, et al v. Helms, 482 U.S. 755 (1987), the plaintiff had never obtained a judgment in his favor, and the question before the Supreme Court was whether he nonetheless could qualify as a prevailing party. The Supreme Court noted

A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment- e.g., a monetary settlement or a change in conduct that redresses the plaintiff's grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor.

Id. at 760-761.Thus, the relief making a party a prevailing party could be either judicial relief, or the equivalent of a judicial judgment which would produce the same effect. Id. Since the lawsuit did not change the defendant's behavior, the Supreme Court ruled that the plaintiff was not a prevailing party.

In Rhodes, et al v. Stewart, 488 U.S. 1, 4 (1988), the Supreme Court declined to deem a declaratory judgment the type of relief warranting attorney's fees because the judgment could not benefit the plaintiffs. In Texas State Teachers Association, et al v. Garland Independent School District, et al, 489 U.S. 782, 791-792 (1989), the Supreme Court viewed the Hensley standards as an adequate inquiry in determining prevailing party status, and described the standards of Hewitt as the 'floor' for attaining such status; thus as a minimum, the Supreme Court stated, there must be a resolution of the dispute which changes the legal relationship between plaintiff and defendant. In Farrar v. Hobby, 113 S. Ct. 566 (1992), the Supreme Court ruled that a nominal damages award was enough for prevailing party status. What was required was either an enforceable judgment against the defendant, or comparable relief through a consent decree or settlement. Id. at 573.Citing to Hewitt, the Supreme Court noted that whatever relief is secured must directly benefit the plaintiff at the time of the judgment or settlement. Id.

We cannot determine from the record before us whether appellant is a prevailing party under the standards enunciated above. As we have already noted, the record suggests that the agency extended appellant's time-in-class during the pendency of this complaint, but does not explain why. If it was this complaint that prompted the extension, the agency's change in behavior toward appellant would make her a prevailing party. While there was no finding of retaliation or judgment on the case at the time appellant's employment was extended, she nevertheless directly benefitted at the time of the agency's action. The extension materially altered the legal relationship between the parties, by extending the employment relationship during the pendency of a complaint asking for such an extension. Moreover, an extension was precisely the type of relief sought by appellant in this complaint. We note that under Rhodes, the declaratory relief ordered herein would not be enough to qualify appellant as a prevailing party. We conclude that appellant would be a prevailing party in this complaint if, but only if, this complaint produced the post-1989 extension in appellant's employment. This aspect of the complaint must be remanded for further investigation and determination by the agency.

The record suggests, but does not clearly state, that appellant's employment was extended for approximately 15 months. This is considerably less than the four years requested by appellant as corrective action. Farrar holds that the magnitude of relief obtained is not part of the prevailing party inquiry. Farrar, 566 S. Ct. at 574. Rather, the degree of success goes to the reasonableness of the fee award. Id. Thus, on remand, the agency should consider, if reaching the question of the reasonableness of attorney's fees, the effect that appellant's degree of success should have on the scope of a fees award. See, Farrar, 566 S. Ct. at 578 (O'Connor, J., concurring); see also Lopez, supra.

CONCLUSION

After a careful review of the record, and for all the foregoing reasons, it is the decision of the Commission to AFFIRM the portion of the agency's final decision finding no discrimination on the bases of sex (female), and to REVERSE and REMAND the portion of the agency's final decision finding no retaliation. The agency is directed to comply with the Order below.

ORDER

The agency is ORDERED to take the following remedial action:

1) Post the attached Notice in accordance with the directive below;

2) The agency shall determine whether appellant is a prevailing party and if so, the degree of success that appellant obtained. The appellant shall cooperate in the agency's efforts, and shall provide all relevant information requested by the agency. No later than sixty (60) calendar days after the date this decision becomes final, the agency shall issue a final decision pursuant to 29 C.F.R. §1614.110 regarding the issue of attorney's fees. Thereafter, if appellant's attorney submits a verified statement of costs and fees in accordance with 29 C.F.R. §1614.501(e)(2), the agency shall, unless the parties execute a written agreement on the matter, issue a decision determining the amount of such fees and costs in accordance with 29 C.F.R. §1614.501(e).

The agency is further directed to submit a report of compliance, as provided in the statement entitled 'Implementation of the Commission's Decision.' The report shall include supporting documentation verifying that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Headquarters PER/PE facility 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.

ATTORNEY'S FEES

If appellant has been represented by an attorney (as defined by 29 C.F.R. §1614.501(e)(1)(iii)), he/she may be 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. If pursuant to the above Order, the agency's final decision awards attorney's fees, the attorney shall submit a verified statement of fees to the agency-not to the Equal Employment Opportunity Commission, Office of Federal Operations. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. §1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1092)

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.

RECONSIDERATION (M1092)

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, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS 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 WITHINTWENTY (20) CALENDARDAYS 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.

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. §2000eetseq.; 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:

Frances M. Hart
Executive Officer
Executive Secretariat

June 10, 1994

 POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government

Date Posted:_____________ Posting Expires:_________ 29 C.F.R. Part 1614

Table of Citing Cases:

1. An exception was permitted where the Director General of the Foreign Service determined that because of medical or compassionate reasons, a member should not be notified of a low ranking.

2. In addition, two members of the Selection Board stated their awareness of appellant's complaint.

3. We also find that the employment action was adverse. It is not manifest that appellant failed to be promoted because of her failure to receive the statement, and the record indicates that appellant was apprised through other means, i.e., the performance evaluations of her supervisors and the 1985 counseling by her CDO, of the same shortcomings that caused the Board to issue the low-ranking statement. However, because appellant was entitled to the statement, and because the agency itself appears to view the statement as a valuable tool for an employee, we have decided to deem the action adverse.

4. To draw this inference does not preclude our characterizing the comment as direct evidence. See Policy Guidance, supra, n. 9.

5. We have considered the possible absence of ill will in the expressions 'cause her distress' or 'make [appellant] mad.' However, even if PER/PE did not act out of malicious or punitive motives, it is no less a violation of Title VII where an adverse employment action is taken because of prior EEO activity. Cf. Carney v. Martin Luther Home, Inc., 824 F.2d 643, 648-649 (8th Cir. 1987) (Pregnancy Discrimination Act violated when employer, harboring no ill motive, placed plaintiff on unpaid medical leave). In the alternative, the expressions could be interpreted to mean an awareness that appellant might react to the low-ranking statement by filing an EEO complaint; if that was the meaning, the expressions would show an equally volatile intent to impede an employee's EEO rights.

6. In the usual case involving terms and conditions of employment, the fact that appellant is no longer an employee would render her ineligible for any relief; she could no longer be deemed to be aggrieved. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). We have concluded that in this case, appellant remains aggrieved. Under the agency's 'up-or-out' policy, her employment would have continued if she had obtained a promotion, and her complaint pertains to denial of a document designed to assist employees in attaining a promotion.