01A25102_r
12-01-2003
Antonio M. Apodaca, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Antonio M. Apodaca v. Department of Transportation
01A25102
December 1, 2003
.
Antonio M. Apodaca,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A25102
Agency Nos. 3-99-3055, 3-99-3098, 3-99-3009R, 3-00-3102
Hearing Nos. 150-A0-8148X, 150-A0-8591X, 150-A1-9128x, 150-A0-9129X
DECISION
Complainant appeals to the Commission from the agency's final action
finding no discrimination. Complainant claimed that the agency had
discriminated him and had subjected him to discriminatory harassment on
the bases of race (Hispanic), national origin (Mexican-American), age
(58) and reprisal (prior EEO activity) when:
On July 7, 1998, Commander A (complainant's supervisor) advised
complainant that the Personnel Division Branch Chief would participate
in the selection process for the vacant Accounting and Procurement
Branch Chief positions.
On July 16, 1998, Commander A disapproved complainant's selections for
the vacant Accounting and Procurement Branch Chief positions.
Complainant was accused of failing to provide service to Naval
Engineering and Support Unit Miami.
Commander A made several disparaging remarks to complainant at a staff
meeting.
On July 21, 1998, Commander A directed complainant to establish an
office at Causeway Island.
On or about August 3, 1998, Commander A requested a follow-up compliance
team inspection from Maintenance and Logistics Command Atlantic.
On September 11, 1998, Commander A failed to deliver complainant's
performance appraisal in a timely manner.
On September 29, 1998, Commander A selected one of the least qualified
applicants for the Budget and Accounting Branch Chief positions.
On September 30, 1998, complainant received an unsatisfactory performance
rating for the period ending July 31, 1998.
On September 30, 1998, complainant was placed on a performance
improvement plan.
On October 14, 1998, complainant was told by Commander A that feedback
had been solicited from the LCDR M, Seventh District Budget Officer
regarding the performance of the Comptroller Division.
On October 14, 1998, complainant was treated in a hostile manner when
he was told by Commander A to, �sit down, I haven't finished talking
to you.�
On January 6, 1999, Commander A ordered complainant to notify individuals
who applied but were not selected for the Accounting and Procurement
Branch Chief positions.
On January 8, 1999, Commander A told complainant to write his own
performance plan.
On January 29, 1999, Commander A asked complainant to stop lying
about him.
On March 10, 1999, Commander A met with complainant to ask him about
the status of his performance appraisal grievance and Commander A stated
that he knew complainant was, �waiting him out.�
On March 10, 1999, complainant was accused of being fiscally
irresponsible for requesting that five galley personnel be allowed to
attend the Coast Guard Galley of the Year Banquet.
Commander A belittled complainant by asking him if he was, �too old to
learn anything new.�
Captain A, Commander A's supervisor and Commanding Officer of ISC Miami,
condoned Commander A's discriminatory acts by saying, �[Commander A]
didn't mean it,� or words to that effect.
On April 20, 1999, Commander A ordered complainant to retrieve his mail
located in the Commanding Officer's Yeoman's Office on Causeway Island.
On June 29, 2000, Commander B told complainant he had erred when he
(complainant) overrode the appraisal rating provided by the first-line
supervisor of Person A.
Commander B deliberately waited several months to confront complainant
regarding his alleged improper use of Federal Express to deliver portions
of his appeal to the Merit Systems Protection Board.
Captain A denied complainant's appeal to reinstate a performance award
nomination that had been disapproved by Commander A.
Commander B made inappropriate comments on complainant's performance
evaluation.
On August 17, 2000, Commander B created a new policy for selecting
civilian employees at ISC Miami, and this policy change applied only
to complainant and not the other division chiefs at ISC Miami.
On November 20, 2000, Captain C2 told complainant that certain
individuals at MLCA were dissatisfied with his performance and that
they �were documenting actions in preparation to fire� complainant.
On April 10, 2001, Commander B criticized complainant for failing to
follow established civilian hiring practices.
On April 26, 2001, Commander B rated complainant as �meets� on his
performance appraisal for the period ending March 2001.
The agency investigated these claims and thereafter referred the matter to
an EEOC Administrative Judge (AJ) who held a hearing and issued a decision
finding no discrimination on July 9, 2002. Because the agency failed to
issue a final order, the AJ's decision became the agency's final action.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The AJ found that complainant's performance problems as Chief of the
Comptroller Division had been extensively documented for a period of
years, that as a result, complainant's relationship with Commander A had
been �strained,� and that these problems existed long before complainant
filed his complaints. The hearing testimony of Commander A and other
witnesses established that the Personnel Division Branch Chief was
required to participate in selections for GS-9 and above positions in
all of the divisions, not just complainant's division. The AJ found
that Commander A harbored concerns about complainant's performance,
and that complainant's evaluations reflected those concerns. With regard
to Commander A overruling complainant's selection recommendations, the
testimony of various selection panel members indicates that complainant's
recommendations were at odds with those of the other panelists. As to
the claim concerning the failure of complainant's division to provide
support to the Naval Engineering Support Unit, representatives of that
unit had complained to Commander A about that matter. As to the remaining
claims, complainant has not presented any documents, testimony, or other
evidence that establishes the existence of a discriminatory motivation on
the part of Commander A or any other agency official, that contradicts
the testimony of these officials, or that undermines the credibility
of these officials as witnesses. The Commission therefore finds that
complainant has not shown that any of the agency's articulated reasons
for its actions in the above-referenced claims were pretextual, and
consequently, we find that the AJ's finding of no discrimination is
supported by substantial evidence of record.
As for complainant's harassment claim, the AJ found that none of the
incidents identified above, when considered as one claim of harassment,
were so severe or pervasive as to give rise to an intimidating,
hostile, or offensive work environment. The record indicates that
Commander A's remarks to complainant and the other nontangible incidents
identified above resulted from the difficult interpersonal relationship
between them rather than from any considerations of complainant's race,
national origin, age, or previous EEO activity. Moreover, complainant
has not shown that Commander A required him to do anything that the other
division chiefs under Commander A's supervision were not required to do.
The Commission therefore finds that the AJ's finding that complainant was
not subjected to discriminatory harassment is supported by substantial
evidence of record.
The agency's final action finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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. � 2000e et seq.;
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 1, 2003
__________________
Date