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Board for Correction Case No. 203-98

199.00 Promotion Program - Promotion to higher grade

Board Members' Recommendations and Decision on Appeal of: xxxxxxx xx xxxxx, xxx, Case Number 203-98

Officer's Request for Relief

Xxxxxxx asked the Board to:

  1. Remove all references to her failure to be selected for promotion to Temporary Grade 0-6.
  2. Promote her to Temporary Grade 0-6 nunc pro tunc to the date she would have been promoted had she been selected by the promotion board that sat in 1995, with back pay and allowances.
  3. Correct her Officer Information Summary (OIS) to show that the billet in which she served at the Xxxxxxxxxx xxxx from 1989 to 1994 was a Grade 0-4 billet.
  4. Correct her 1994 COER as provided in Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx memorandum of Xxxxxxxxxx 1995; the correction to be made in a manner calculated not to call attention to itself.
  5. If the Board for Correction does not promote, direct that her corrected records be sent to the Grade 0-6 promotion board.

In addition, the Board should enter an order providing that:

7. Until Xxxxxxx actually holds a billet rated at Grade 0-5 or above, her COERs shall state, whatever the nominal billet level may be, that she is serving in a Grade 0-5 billet.

8. No Xxxxxxxxxx promotion recommendation that purports to rank officers detailed to the Xxxxxxxxxx be received by any PHS promotion board if Xxxxxxx is under consideration.

Arguments by Officer

Xxxxxxx argued the following:

  1. Each time she was considered for promotion to Temporary Grade 0-6 (in 1995, 1996,and 1997), her Officer Information Summary (OIS) incorrectly and prejudicially showed her as having served for a prolonged period as a XXXXX XXXXXX XXXXXXX (a Grade 0-3 billet) at the Xxxxxxxxxx xxxx when in fact she was Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. It continues to do so even now, long after the error was acknowledged in an official correspondence from the Chief Medical Officer of the Xxxxxxxxxx.
  2. At the time she was considered for Temporary Grade 0-6 in 1995, 1996 and 1997, her record included a 1994 COER on which the Reviewer mistakenly and prejudicially indicated that her Supervisor was less demanding than most. It continues to do so even now, long after the error was acknowledged in official correspondence from the Chief Medical Officer of the Xxxxxxxxxx.

    Her record before the 1995 and 1996 promotion boards also included a counseling summary that prejudicially contained the same misinformation. Her record before the 1997 Promotion board included a performance summary that also contained this misinformation.
  3. At the time she was considered for Temporary Grade 0-6 in 1995 and 1996, her record prejudicially included a 1995 COER on which the overall evaluation mark was blank.
  4. Her opportunity for fair consideration for promotion to the Temporary Grade 0-6 was prejudiced by the Xxxxxxxxxx imposition of a "glass ceiling" by continually assigning her to Grade 0-3 billets.
  5. Her opportunity for fair consideration for promotion to the Temporary Grade 0-6 was prejudiced by the Xxxxxxxxxx failure to honor its commitment to transfer her to an appropriate billet, in contrast to the fact that three male dentists to whom the identical promise was made were transferred as promised.
  6. Her right to have a promotion board of (PHS) officers weigh her qualifications against those of all eligible Xxxxxxxxxxxxxxxxxxx was materially prejudiced by the inclusion in the promotion boards' deliberations of a promotion recommendation generated by the Xxxxxxxxxx:

    a. In secret
    b. Without an opportunity for her to submit a communication to the promotion board.
    c. That was based on the Xxxxxxxxxx comparative evaluation of only those eligible dental officers on detail to the Xxxxxxxxxx.
    d. Without reviews of the competing officers' official PHS records.

Xxxxxxx believed that she was treated unfairly and that she suffered an injustice by the misinformation communicated to Promotion Boards, by the verbal downgrading of her COER evaluation, by not following procedures in processing her COER, by consistently assigning her to Grade 0-3 billets, by treating her differently than three males in her same circumstance, by not allowing her to submit input on a Xxxxxxxxxx promotion recommendation, by the misinformation contained in her record, and by denying the promotion board access to her documentation supporting a promotion.

III. Arguments by the Division of Commissioned Personnel (DCP)

DCP argued the following:

1. DCP affirms Advisory Opinions dated xxxxx 1998; xxx 1998; and xxxx 1999 in which DCP advised the Board that this case was not properly before the Board because the applicant failed to exhaust available administrative remedies.

2. In an official legal opinion, the Office of the General Counsel (OGC), opined:

"It appears to me that she is complaining about discrimination in her billet assignments by the Xxxxxxxxxx. Those complaints should be properly addressed to the Xxxxxxxxxx. ..."

3. The applicant seeks to prove that she was treated unfairly on the basis of gender (discriminated against) in billet assignment, even though she voluntarily accepted a low grade billet as an accommodation of her request to remain in the Xxxxxxxxxxxxxx area. She asserts that had her record reflected a higher billet grade when it was reviewed by the promotion boards, she would have been promoted. The error or injustice, if any, did not occur when the promotion boards reviewed her record, for the Board correctly found that the record of an officer competing for promotion to the 0-6 Grade, but performing the duties of an O-4 officer, was not competitive.. The error or injustice, if any, occurred when she was placed in an 0-4 billet. The remedy that she seeks, upon a finding of an error or injustice, is retroactive promotion to the 0-6 Grade.

4. As OGC noted, "The Division of Commissioned Personnel plays no role in the assignments of personnel detailed to the Xxxxxxxxxx." Therefore, as recommended by OGC, the complaint should be addressed by the Xxxxxxxxxx.

5. In its response to the Board's inquiry, the Xxxxxxxxxx noted that, "An E EO process would not be appropriate unless there was evidence of discrimination." The applicant's Xxxxxxxxxx correspondence offers the OIS' of several male officers as evidence of gender discrimination.

6. DCP submits this is compelling evidence that this case is an E EO case and should be addressed as such by the Xxxxxxxxxx before the PHS Board for Correction can begin to address the issue of remedies.

7. DCP provided documentation that no dental officer who was promoted to the 0-6 grade occupied an 0-4 billet when their record was reviewed by the promotion board. The billet histories of the officers in question provided to the FOIA officer affirms this statement.

8. As noted above, the applicant provided the redacted OIS' of several male dental officers in support of her argument that the Xxxxxxxxxx discriminated against her in the assignment of billet grades. However, careful review of the OIS' support a finding of the promotion boards that the applicant was not competitive with peers. When compared with these same officers, Xxxxxxx OIS reflected less overall experience and no experience in the area of supervision. Xxxxxxx voluntarily compromised her opportunity to accept billets of increased responsibility in return for remaining in the geographic location of her choice. Such a compromise was certainly not what Congress intended when it authorized the Board to correct errors or injustices in the record.

Board Action on Officer's Appeal

Date of Board Meeting: xxxxx xx, 2000

Board Staff:

Norman E. Prince, Jr. Staff Director
Program Support Center Executive Director
Board for Correction of PHS Commissioned Corps

Thomas E. White, Ph.D. Executive Secretary
Board for Correction of PHS Commissioned Records

Members of the Board:

William F. Raub, Ph.D.
Chairperson of the Board and Deputy Assistant Secretary for Science Policy
Office of the Assistant Secretary for Planning and Evaluation, OS

Consider or Not Consider Application

The record contained conflicting opinions on whether the Board members should consider Xxxxxxx application or whether it should be returned for processing by the Xxxxxxxxxx as an E EO complaint.

DCP argued the following:

Xxxxxxx did not exhaust her administrative remedies. She should have filed her appeal with the Xxxxxxxxxx as an EEO complaint. Board policy encouraged applicants to delay filing until other remedies had been exhausted. Her appeal did not involve a correction to the record, but an allegation of illegal gender discrimination in assigning her billet.

OGC's advice to the Board had been:

"If, as you view it, her complaint is not an E EO complaint but an appeal to the Correction Board over failure of promotion, it must be processed as a PHS Correction Board matter."

Conclusion

The Board members concluded that rather than being a case of illegal gender discrimination, the issue regarding Xxxxxxx billet level was the result of several factors: her desire to co-locate xxxx xxx xxxxxxx, the operation of the personnel/management system permitting differences in billet levels for the same job and for different individuals and inaccurate records regarding her billet classification. OGC had advised the Board that a single venue must be selected even though "mixed issues" may be involved. The Board members viewed her case as an appeal to it over failure of promotion.

Merits of Appeal

Findings, Conclusions, Recommendations and Corrections to the Record

Findings

  1. Xxxxxxx was called to active duty in an 0-3 billet in Xxxxxxxx 1979 (she was a Temporary Grade 0-3).
  2. She was assimilated into the regular corps in xxx 1989.
  3. When she was considered for promotion to a Temporary Grade 0-6 in 1995, her OIS showed her in an 0-3 billet (Xxxxxxxxxxxxxxxxxxxxxxxxxx).

    Xxxxxxxxxxxxx (who signed off on Xxxxxxxxxx promotion recommendations) notified DCP in Xxxxxxxxx1995 that her correct billet grade was 0-4. The record did not document any correction to the record following this memorandum. Items three and four of her request to the Board asked it to do this. All PHS evaluators recommended her for promotion in 1995. DCP noted that none of the dental officers promoted during the prior three years had been in 0-3 or 0-4 billets (all were in either 0-6 or 0-5 billets).
  4. The Xxxxxxxxxx recommended her for promotion to the Temporary Grade 0-6 in 1996. The majority of the PHS evaluators recommended her for promotion (two were concerned about her 0-3 billet).
  5. The Xxxxxxxxxx recommended her for promotion to the Temporary Grade 0-6 in 1997. The majority of the PHS evaluators recommended her for promotion (two were concerned about her 0-3 billet).
  6. The Xxxxxxxxxx recommended her for promotion to the Temporary Grade 0-6 in 1998. All PHS evaluators recommended her for promotion (two were concerned about her 0-3 billet).
  7. The Xxxxxxxxxx noted that the 1998 promotion board had corrected records in its possession. She was not promoted in 1998 with the corrected information. The Xxxxxxxxxx considered Xxxxxxxxxxxxx memorandum to have corrected her record. However, no correction had been made to the PHS documents used by the promotion board (her OIS and 1994 COER). As mentioned earlier, she asked the Board to correct these documents.
  8. Her billet assignment was changed to 0-5 in Xxxxxxx 1998 (Chief, xxxxxx xxxx xxx).
  9. The Xxxxxxxxxx recommended her for promotion to the Temporary Grade 0-6 in 1999. All PHS evaluators recommended her for promotion, all but one citing her 0-5 billet.
  10. The Xxxxxxxxxx noted that she did not lack any specific personal qualifications that prevented her from being eligible for 0-4 or 0-5 billets. Her geographic and co-location needs limited the options available to her.

Conclusions

The Board members concluded that:

  1. Xxxxxxx was not competitive in 1995 when considered for promotion to the Temporary Grade 0-6 because she was not in an 0-6 or 0-5 billet. Had her OIS showed her in an 0-4 billet, she would have remained noncompetitive since officers in 0-6 billets had the best chance of being promoted. These reasons, a retroactive promotion to the Temporary Grade 0-6 in 1995 would not be appropriate.
  2. The record documented that the Xxxxxxxxxx considered her qualified for promotion to the Temporary Grade 0-6 by recommending her in 1996, 1997, 1998, and 1999 (the Xxxxxxxxxx recommendation in "1995 was described as "R " which was not clarified by the record) . All or a majority of the PHS evaluators recommended her for promotion during those years (DCP policy required evaluators to be in the 0-6 grade) .

    She had been recommended for promotion while in an 0-3 billet and in an 0-5 billet. However, the Board members did not find any documentation from those responsible for administering promotion boards stating why she was not promoted after being recommended by both the Xxxxxxxxxx and the PHS evaluators.

Recommendations and Corrections to the Record

The Board members recommended the following:3.

  1. All references and related documents to Xxxxxxx failure to be selected for promotion to the Temporary Grade 0-6 be removed from her record for the years: 1995, 1996, 1997, 1998 and 1999.
  2. She not receive a retroactive promotion to the Temporary Grade 0-6 as of 1995.
  3. Her OIS and related documents be corrected to show she was in an 0-4 billet while at the Xxxxxxxxxx from 1989 to 1994. Xxxxxxxxxxxxx indicated that her Xxxxxxxxx1989 billet was 0-4 rather than 03. The Board members were unable to locate these documents in her record.
  4. Her 1994 COER, Section V (2), be changed from (C) "Although this evaluation is reasonable, this rater is a somewhat less demanding rater than most" to (A) "I concur with this evaluation in all respects". Xxxxxxxxxxxx mentioned this correction in his memorandum. Her COER had not been corrected.
  5. As an eligible officer, the Board members expected her corrected and updated record to be sent to the PHS 2000 promotion board for consideration of promotion to the Temporary Grade 0-6. If this did not happen, they recommended that her corrected record be sent to the 2000 promotion board.
  6. The corrections and changes to her record be limited to those recommended by the Board.
  7. Regarding her billet classification, this request be considered moot since she had been assigned to an 0-5 billet in Xxxxxxx 1998.
  8. Regarding the ranking of officers, this request be denied on the grounds that to do so would deny otherwise eligible officers from receiving fair consideration based on the merits.

We certify that Board members' recommendations and corrections to the record reflect their views and actions after considering Xxxxxxx appeal and that they have concurred in this matter.

We certify, further, that the Case Record, shown as an Attachment, contains all documentation received on Xxxxxxx appeal; and in addition to applicable statutes, regulations and policies, it was considered by Board members.

Finally, we certify that a quorum was present on xxxx xx, 2000 when Xxxxxxx appeal was considered.

If you approve, please sign below.

William F. Raub, Ph.D.
Chairperson of the Board and Deputy Assistant Secretary for Science Policy
Office of the Assistant Secretary for Planning and Evaluation, OS

Reviewed and Approved

I hereby (x) approve ( ) disapprove the Board members' recommendations and corrections to the record on Xxxxxxx request for relief received and considered in accordance with the authority of Section 221a(a) (12) of the Public Health Service Act (P.L. 96-76 as amended) , and 42 U.S.C. 213a(a) (12), extending to the PHS Commissioned Corps the provisions of 10 U.S.C. 1552, and empower the Director, Division of Commissioned Personnel, Human Resources Service, Program Support Center, to implement this decision and correct her record as stipulated. She is entitled to review her record to ensure compliance with this decision.

Lynnda M. Regan
Director
Program Support Center

Attachment: Case Record

Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.