In Gillespie v. Dep’t of the Army, EEOC Appeal No. 0120080758 (May 25, 2012), the Commission found that the agency had discriminated against the complainant on the bases of race, sex, and reprisal. The Commission, thus, reversed the administrative judge’s (AJ) decision granting summary judgment to the agency.

The complainant worked as a general attorney, GS-14, at the agency’s office of general counsel, South Pacific Division, U.S. Army Corps of Engineers, in San Francisco. She was assigned a new first-level supervisor (S1), who completed and signed her "Senior System Civilian Evaluation Report," covering the 2003-2004 annual performance rating period, and gave her a "Level 2 – Successful" rating. She filed an EEO complaint alleging that the agency discriminated against her on the bases of race (Asian), sex (female), age (48), and reprisal for prior protected EEO activity. The complainant alleged that S1 had disparaged her work product in front of others by using a rude and loud tone of voice toward her, and that S1 treated her differently than she treated other employees under her supervision.

The Commission found that summary judgment was appropriate because no genuine issue of material fact existed, but that the AJ erred in finding in favor of the agency. In regard to the 2003/2004 annual performance evaluation, the Commission first found that the complainant had established a prima facie case of race and sex discrimination because she had shown that she was an Asian female employee, that she was one of six attorneys rated by S1 and the only attorney rated by S-1 who was an Asian female, and that she was the only attorney who received a "Level 2 – Successful" rating from S1, while all others received the higher "Level 1 – Successful" rating. The Commission then found that the agency had stated a legitimate, nondiscriminatory reason for the lower performance rating, i.e., performance deficiencies. However, the Commission found that the complainant had shown by a preponderance of the evidence that the agency’s explanation was pretextual because she had presented "credible evidence to establish that the agency’s nondiscriminatory reasons are unworthy of belief."

The record reflected that the complainant was directly supervised by S1 during only four months; that another supervisor (S2) who directly supervised her during five months that year had explained to S1 that he was giving her an outstanding rating; that S2 attempted to give her an on-the-spot award for her performance but that S1 blocked it; and that she received the lowest performance rating of all seven employees rated by S1, and no other employee testified that she had any performance deficiencies. Thus, the Commission found that she had established that S1 discriminated against her on the bases of race and sex when she gave her a low performance rating.

The Commission then addressed the complainant’s other claims and found that both the agency and the AJ had erred in failing to treat all of her allegations as part of one claim of ongoing harassment. The Commission found that S1’s yelling at and berating her and disparaging her work in front of others, as well as giving the impression to employees that her performance was unprofessional and subpar, was "sufficiently severe and pervasive to alter the conditions of Complainant’s employment and create an abusive working environment."

The Commission found that S1’s harassment was based on the complainant’s sex and in reprisal for protected EEO activity. In regard to harassment on the basis of sex, the Commission found that S1 treated her and other women differently than men and that she yelled at her frequently and belittled her in front of others. The Commission also noted that no other coworkers or supervisors had any issues with the complainant’s work performance and that another female attorney had also complained about discrimination by S1. As for harassment in reprisal for EEO activity, the Commission noted that S1 had specifically stated that she wished to block an award to the complainant because of her ongoing EEO activities.

Lastly, the Commission found the agency liable for S1’s harassment because the harassment culminated in a tangible employment action, i.e., a poor annual performance rating. The Commission also noted that even if the rating was not a tangible employment action, the agency was still liable because the harassment was so pervasive that the agency should have had constructive knowledge of it, and it did not take any corrective action or establish any affirmative defenses.

The Commission ordered the agency to change the performance rating to "Level 1 – Successful" and to give her notice of her right to present objective evidence in support of a claim for compensatory damages.

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