Arnold L. Trindade, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, (Federal Drug Administration), Agency.

Equal Employment Opportunity CommissionDec 22, 2000
01996687 (E.E.O.C. Dec. 22, 2000)

01996687

12-22-2000

Arnold L. Trindade, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (Federal Drug Administration), Agency.


Arnold L. Trindade v. Department of Health and Human Services

01996687

December 22, 2000

.

Arnold L. Trindade,

Complainant,

v.

Donna E. Shalala,

Secretary,

Department of Health and Human Services,

(Federal Drug Administration),

Agency.

Appeal No. 01996687

Agency No. FDA-014-95

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<1> Complainant

alleged that he was discriminated against on the bases of race (Asian

Pacific Indian) and age (DOB: 10/31/33) when: (1) he received a rating

of Excellent rather than Outstanding on Element II of his Fiscal Year

1995 performance appraisal; (2) management used a "Special Report" which

contained deliberately false documentation about his work in an attempt

to show that his productivity was low; and (3) his perfect score on the

National Check Sample for Quality Assurance was not recognized in his

Fiscal Year 1995 performance appraisal.

The record reveals that during the relevant time, complainant was employed

as a GS-11 Microbiologist, at the agency's Northeast Region facility in

Brooklyn, New York. Believing the agency discriminated against him as

referenced above, complainant sought EEO counseling and subsequently

filed a formal complaint on December 11, 1995. At the conclusion of

the investigation, complainant was informed of his right to request a

hearing before an EEOC Administrative Judge or alternatively, to receive

a final decision by the agency. Complainant requested that the agency

issue a final decision.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253-256 (1981); and Loeb v. Textron, 600 F.2d 1003

(1st Cir. 1979), the Commission finds that even assuming complainant

established prima facie cases of race and age discrimination, he failed

to establish that the agency's legitimate, nondiscriminatory reason

for the Excellent rating was a pretext for race discrimination or

that "but for" his age, he would have received an Outstanding rating.

In reaching this conclusion, the agency stated that in order to achieve

an Outstanding rating in Element II, an employee had to make him or

herself available for extra duties and put in extra time. Review of the

Element II ratings in the performance appraisals of those employees who

received an Outstanding rating reflects that these employees volunteered

for and undertook additional work. There is no evidence in the record

that complainant did the same.

We further find that complainant failed to establish that the "Special

Report" prepared on his behalf after he received his performance

appraisal contained deliberately false documentation or inaccuracies

or was produced in an attempt to show that his productivity was low.

The evidence indicates that the "Special Report" did not represent

time spent on completed operations which is why it was inconsistent

with complainant's personal log. Moreover, complainant's Element

II rating indicated that he maintained a high level of productivity.

However, a high level of productivity alone was insufficient to merit an

Outstanding rating in Element II; an employee had to make him or herself

available for extra duties and put in extra time. Finally, management

stated that complainant's perfect score on the National Check Sample for

Quality Assurance occurred in 1993 and therefore did not have bearing

on his Fiscal Year 1995 performance appraisal. However, complainant did

receive credit for a Check Sample Analysis assignment which was reviewed

under Element I for which he received an Outstanding rating.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 22, 2000

__________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.