ratings in September 1982. Both individuals who signed plaintiff's review form and conferred about her ratings had knowledge of her EEO complaints. Indeed, General Kroesen who approved the ratings was the alleged discriminating official in one charge. Plaintiff challenged therein the selection of Luther Santiful as EEO Officer, and it was Santiful who gave her the Merit Pay rating. In light of the nearly uniform praise accorded plaintiff's technical abilities, and her record of receiving high Merit Pay ratings in the past, an inference could be drawn that the "highly successful" rating she received in 1982 was in reprisal for her EEO charges.
Nonetheless, the Court finds that the legitimate reasons defendant articulated were not shown to be pretextual by a preponderance of the evidence. Mr. Santiful's ratings were based on admittedly subjective criteria, and plaintiff vehemently disagrees with his conclusions. As stated above, because the criteria are subjective the Court must scrutinize - not reject - them. E.g., Davis, 613 F.2d at 957. Although plaintiff challenged the basis for the complaints, and questioned Santiful's credibility, independent evidence persuades the Court that complaints were made to Santiful about the manner in which plaintiff performed her job. There was no evidence that Santiful encouraged or unduly credited the complaints that were made. Plaintiff's suggestion that her abrasiveness and the reported complaints are a recent fabrication is further discredited by the testimony of her friend and former supervisor William Gibson: while it was clear to the Court that Gibson holds plaintiff in the highest esteem as an individual and an employee, he recognized that she could be difficult to deal with, and testified that he also had received complaints about her. These complaints did not keep him from giving plaintiff the highest Merit Pay rating.
In scrutinizing Santiful's decision to rate plaintiff, however, the Court must focus on his motivation, not on his business judgment. E.g., Loeb, 600 F.2d at 1012 n.6. Santiful's decision was made based on the complaints he received, and the propriety of his conclusion that the sum of plaintiff's personal and professional characteristics merited a rating of "Highly Successful" is not before the Court's review, once it determines that retaliation was not a factor. Santiful's ratings do not appear unreasonable or pretextual, and plaintiff presented no evidence to suggest that his evaluation of her abilities was based on factors other than his perception of her performance. Mr. Santiful was entitled to make his own business judgments, as long as they were not pretextual. Id. The Court concludes that Santiful exercised this judgment in a non-retaliatory fashion in assigning plaintiff her Merit Pay ratings.
In an effort to discredit the ultimate rating she received, plaintiff introduced testimony of other employees who spoke highly of her, personally and professionally. The Court reiterates that it does not doubt that plaintiff is a dedicated and highly capable individual. The other elements - critical and non-critical - of her Merit Pay rating reflect this level of performance. Such evidence does not counter the evidence that individuals other than Santiful found Ms. Judge difficult to interact with professionally. Viewing the evidence as a whole, the Court finds that it does not demonstrate by a preponderance that retaliation was a factor in Santiful's rating of plaintiff. Accordingly, the Court concludes that plaintiff has not established her claim for retaliation in the Merit Pay rating.
The Court is satisfied that General Kroesen's concurrence in Santiful's rating of plaintiff was objective, and was not based on Kroesen's reaction to plaintiff's EEO complaints. General Kroesen had a limited role in the Merit Pay evaluation of plaintiff, and appears to have concurred in plaintiff's supervisor's ratings, just as he had done before any EEO complaints were filed. Additionally the Court notes that Kroesen rated Santiful "Highly Successful" for the same period, even though Santiful, just like Judge, exceeded the standard for each of his critical job elements. Kroesen thus appears to the Court to have acted objectively and consistently when he approved Judge's rating of "Highly Successful."
The Court concludes that plaintiff has failed to show retaliation in any of her claims by a preponderance of the evidence.
An order consistent with the foregoing conclusions accompanies this opinion.
In accordance with the accompanying opinion, it is this 11th day of December, 1986,
ORDERED that judgment is hereby entered in defendant's favor on all claims in the above action. This case is dismissed in its entirety with prejudice.
Thomas F. Hogan, United States District